OUTLINES
OF
INTERNATIONAL LAW
WITH
AN ACCOUNT OF ITS ORIGIN AND SOURCES AND
OF ITS HISTORICAL DEVELOPMENT
BY
GEORGE B. DAVIS
MAJOR AND JUDGE- ADVOCATE U.S.A.
NEW YORK
HARPER & BROTHERS, FRANKLIN SQUARE
Copyright, 1887, by HARPER & BROTHERS.
All rights reserved.
PREFACE.
IT has been my purpose in the preparation of this
volume to provide a work sufficiently elementary in
character to be within the reach of students and others
who may desire to gain some knowledge of the general
principles of International Law. It is intended to be
used as a text-book, rather than as a book of formal
reference. To that end the use of citations, and of
terms technical to the law, has been avoided wherever
it was possible to do so, and the effort has been made
to express the fundamental principles of the science as
concisely as possible and in the English language.
Where quotations have been found necessary they
have been acknowledged in the text, and the student
will find, at the end of each chapter, a list of references
to state papers, or to the works of writers of standard
authority, where the subjects discussed in the text will
be found treated at greater length and in more elabo-
rate detail.
WEST POINT, N. Y.
2210000
TABLE OF CONTENTS.
List of Authorities Cited xix
CHAPTER I.
DEFINITION AND HISTORY.
Of Law in General 1
Classification of Public Law 1
Municipal Law 1
International Law 1
International and Municipal Law Compared 2
History of the Science of International Law 3
The Oriental Monarchies 8
Greece 3
Rome 4
The International Law of the Middle Ages 4
Effects of the Revival of Commerce 5
Early Codes of Maritime Law 5
The ' ' Jugements of Oleron " . 5
The " Consolato del Mare " 6
The "Guidon de la Mar" 6
Other Early Codes 7
Comparison of the Sea Laws 7
Effects upon International Law of
The Feudal System 8
The Institution of Chivalry 10
The Roman Church 11
The Church and the Emperor 11
(Ecumenical Councils 13
The Rise of the European Monarchies 14
The Influence of Grotius 15
The Sources of International Law 18
Treaties and Conventions 18
The Judgments of International Courts and Boards of Ar-
bitration < . 19
The Diplomatic Correspondence of States 19
yj TABLE OF CONTENTS.
PAGE
The Roman Law 19
The Works of Text Writers 22
Decisions of Courts upon Questions of International Law . 23
The Municipal Law of States 24
General Histories, Histories of Important Epochs, Biogra-
phies, etc 24
The Divine Law 24
Divisions of International Law 24
The Natural Law of Nations 25
The Positive Law of Nations 2o
(a) The Customary Law of Nations 25
(J) The Conventional Law of Nations 25
The Parties to International Law 26
References 26
CHAPTER II.
STATES AND THEIE ESSENTIAL ATTRIBUTES.
Definition of a State 28
The Sovereignty of a State 28
The Government of a State 28
Classification of Governments . 29
Classification of Governmental Powers 30
Governments de facto and dejure . , 30
The Essential Attributes of Sovereignty 31
Sovereignty 31
Independence 31
Equality 31
Sovereign States 32
Dependent or Semi-sovereign States 32
Confederations 32
Rule for Determining the Strength of a Confederation . . 33
Right of a State to Change its Constitution and Laws . . 33
Sovereignty, how Acquired, how Lost 34
Territory 35
Definition of the Term 35
River Boundaries 35
What Constitutes the Territory of a State 36
Jurisdiction over Closed Seas 37
Rights of Ownership and Jurisdiction in the case of Straits 37
The Danish Sound Dues 38
Ship Canals 39
Jurisdiction over a Portion of the Coast Sea, the Marine
League 40
Case of the Franconia . . .41
TABLE OF CONTENTS. yjj
The High Seas *42
Freedom of the Seas 43
Claims to Exclusive Dominion 43
Right of River Navigation 44
Action of the Congress of Vienna 44
Cases of the Rhine, Main, Moselle, Neckar, Meuse, and
Scheldt 44
Cases of the Elbe, Vistula, Weser, and Po 45
Case of the Douro 45
Case of the Danube 45
Case of the Mississippi 46
Case of the St. Lawrence 49
Servitudes 52
Origin and Definition of the Trm 52
Its Application in International Law 52
How Created and Terminated 53
Examples of Servitudes 54
The Right of Territorial Jurisdiction 54
Classification of Jurisdictional Powers 54
In Whom Vested 55
The Legislative Power 55
The Executive Power 56
The Judicial Power 56
Extra-territorial Jurisdiction of a State 57
Over the Officers and Crews of Ships of War 57
Over its Merchant Vessels on the High Seas 57
Over its Armies in the Field . . 59
Over Crimes Committed by its Subjects in Unoccupied
Territory 59
Over the Crime of Piracy 59
The Principle of Exterritoriality 59
Origin and Definition of the Term 59
Application to Ships of War in Foreign Ports 60
Application to Armies in Transit 63
Application to the Person of a Sovereign, to his Retinue
and Train, while Passing through, or Sojourning in,
Foreign Territory 65
Application to Ambassadors, etc 67
Application to Consuls, and to Foreigners in Certain East-
ern Countries 67
References 68
TABLE OF CONTENTS.
CHAPTER III.
PERFECT AND IMPERFECT RIGHTS. PAO ,
Perfect Rights 70
Classification of 70
The Right of Self-preservation 70
Duty of a State to Protect its Subjects 72
The Right of Reputation 73
The Enforcement of Treaty Stipulations 74
Duty of Non-interference 74
The Right of Interference 74
(a) To Assist a State in Suppressing an Insurrection
or Rebellion 75
(J) Interference in Accordance with Treaty Stipula-
tions 76
(c) In Self-defence 77
(d) Interference in Behalf of the Balance of Power . . 77
De Marten's Statement of the Principle of Balance
of Power 80
Vattel's Rules 81
Senior's Limitation of the Right 81
(e) Interference in Behalf of Oppressed Populations . 82
The Duty of Mutual Respect 83
Forms of Mutual Courtesy 85
Maritime Ceremonial 87
Ceremonial in Foreign Ports 88
International Agreement as to Salutes 90
Observance of National Anniversaries 91
Ceremonial on Land 91
The Formalities of Diplomatic Intercourse 92
Imperfect Rights, or Moral Claims 92
The Duty of Humanity 93
The Duty of Comity 94
The Duty of Intercourse 94
(a) Interstate 94
(6) Commercial 95
CHAPTER IV.
NATIONAL CHARACTER.
National Character of an Individual, how Determined .... 98
Definition of the Terms Citizen and Subject 98
Classification of Citizens 99
Native-born Citizens. 99
Naturalized Citizens . 100
TABLE OF CONTENTS. JX
PAOC
Naturalization 100
Conditions of Naturalization 101
Heinrich's Case 102
Koszta's Case 103
Largomarsini's Case 105
Ungar's Case 106
Naturalization Treaties of the United States 107
Expatriation 108
Conditions of 108
Policy of States in the Matter of 109
Aliens and Domicile 110
History of the Treatment of Aliens 110
Definition of the Term 112
(a) Aliens, or Aliens Proper 112
(b) Domiciled Strangers 112
Legal Situation of Aliens 112
Domicile 116
Distinction between Citizenship and Domicile 117
Conditions of Domicile 118
Importance of the Rules of Domicile 121
References 1 121
CHAPTER V.
EXTRADITION.
The Right of Criminal Jurisdiction 123
Duty of a State as to Crimes Committed Abroad 123
Extradition by Comity and Treaty 124
Difference of View as to Criminal Jurisdiction 124
Definition of the Term Extradition 126
Methods of Extradition 126
(a) By Treaty 126
(b) In Accordance with Municipal Law 126
(c) By Comity 126
Extraditable Offences 126
Requisitions for Extradition, by Whom Made 127
Conditions of Extradition 127
Extradition Treaties of the United Slates 128
Interstate Extradition in the United States 129
References 131
CHAPTER VI.
PRIVATE INTERNATIONAL LAW.
Relations of States and Individuals at International Law . . 132
Definition of Private International Law 132
x TABLE OF CONTENTS.
MM
Practice of International Law Based on Comity or Consent. . 132
Origin of the Practice 133
Subjects Discussed in Private International Law 136
Limitations upon the Practice of Private International Law . 137
Foreign Judgments 138
Effect of 138
Conditions to be Fulfilled in Order that Effect may be
Given to 138
Condition of Reciprocity 138
Why Produced before the Courts of a State 139
Practice of States in the Matter of 139
References 140
CHAPTER VII.
THE EIGHT OF LEGATION.
Origin of the Right . 141
The Right of Legation 142
Classification of Diplomatic Agents . . 143
Rank of Ambassadors . 144
Titles of Ambassadors 145
Manner of Sending and Receiving Ambassadors .... 146
Reception of Ambassadors 146
Duties of Ambassadors 147
Diplomatic Language 147
Functions of, how Suspended and Terminated 148
Privileges and Immunities of Ambassadors. ....... 149
Necessity of Immunities 149
The Principle of Exterritoriality 150
Immunity from Criminal Jurisdiction 1-50
Immunity from Civil Jurisdiction 151
Immunity of Hotel 152
Privilege of Religious "Worship 153
Exemption from Customs Dues 153
Consuls, their Duties and Privileges 154
Origin of the Consular Function , 154
The Duties of Consuls .'156
Classification of Consular Employees 157
Privileges and Immunities of Consuls 157
By whom Appointed 158
How Recognized in Foreign States 158
The Exequatur 158
Manner of Appointment in the United States 160
Consular Jurisdiction 161
Extent and Character of 162
TABLE OF CONTENTS.
TAGS
Jurisdiction of U. S. Consuls 162
References 164
CHAPTER VIII.
TREATIES AND CONVENTIONS.
Definition and Purpose 165
The Right of Making Treaties 165
Contracts and Agreements with Individuals 166
The Treaty-Making Power 166
Limitations upon the Treaty-Making Power 167
Conditions Essential to the Validity of Treaties 167
The Power of the Contracting Parties 167
The Consent of the Contracting Parties 168
Possibility of Execution 168
Binding Force of Treaties 169
Manner of Negotiating Treaties 169
Language Used 170
Form and Signature 171
Ratification of Treaties 172
Classification of Treaties 173
Transitory Agreements or Conventions 174
Permanent Treaties 174
Cartels . 174
Capitulations 174
Treaties of Alliance 175
Treaties of Guarantee 176
Reciprocity Treaties 178
Treaties, how Terminated 179
How Violated 179
Rules for Interpreting Treaties 180
Strict Interpretation 182
Liberal Interpretation 182
Terms Used 183
Protocol 188
Recez 183
Separate Articles 183
The Most Favored Nation Clause 183
References 184
CHAPTER IX.
THE CONFLICT OP INTERNATIONAL EIGHTS.
Causes of Conflict 186
Methods of Adjusting International Differences . ... . . 186
Amicable Adjustment 186
yji TABLE OF CONTENTS.
MMB
The Duty of Moderation 189
Mediation 190
Arbitration 191
Conditions of Arbitration 191
Binding Effect of Decision 192
Mediation and Arbitration Compared 192
Measures of Redress 193
Retorsion 194
Reprisals 195
References 197
CHAPTER X.
WAE.
The Right of Redress . 198
Definition and Purpose of War 198
Rightfulness of War - ... 199
Classification of Wars 199
Internal Wars 199
(a) Civil Wars 199
(ft) Insurrections and Rebellions 199
Belligerents .... ....... - 20
The Laws of War 200
Right of Declaring War, in Whom Vested 201
Causes of War 201
Responsibility for a Resort to War 202
Moral Considerations Involved 202
Declaration of War, Ancient and Modern Rule 203
Official Notification of an Intended Resort to War 204
Effect of War upon Treaties of Alliance, Guarantee, and Sub-
sidy 204
Effects of a State of War 205
(a) Upon the Belligerent States 205
(6) Upon the Subjects of the Belligerent States .... 205
(c) Upon the Property of Enemy Subjects 207
The Laws of War 208
Their Character and Tendency 208
Subjects Treated of 210
Amount and Kind of Force that may be Used 210
Legal Effects of a State of War upon the Subjects of the Bel-
ligerent States 210
Who may Lawfully Carry on War 211
Partisans 211
Levees en masse . 212
TABLE OF CONTENTS.
PAQB
Guerillas 214
Forces that may not be Employed in War 214
Wars with Savages 215
Forces Employed at Sea 215
Privateers 216
Letters of Marque 216
Letters of Marque and Reprisal 216
Effect of Modern Inventions 218
Methods of Carrying on War 218
Rule of Good Faith 219
Use of Deceit 219
Attack of Places 219
Duty of the Commander of a Besieged Place in the Matter of
Surrender 221
Use of the Enemy's Uniform and Flag 222
Giving arid Receiving Quarter 222
Treatment of Individuals of the Enemy 223
Forbidden Practices 223
Instruments of War 223
Rule for Determining whether a Particular Instrument may,
or may not, be Used in War 224
Torpedoes, and Torpedo Warfare 225
Usages of War at Sea 226
The Public and Private Property of the Enemy 226
Treatment of Property on Land 226
Requisitions 228
Contributions 230
Captured Property on Land 230
Treatment of Non-combatants in the Theatre of War .... 232
Combatant, Defined 232
Non-combatant, Defined 233
Prisoners of War 233
Who may be Made Prisoners of War 233
Treatment of 234
Exchange of 235
Paroles .236
From Whom Received 236
Breach of Parole 237
Intercourse between Belligerents 237
Flags of Truce 238
Cartels and Capitulations 239
Safe-conducts and Safeguards 239
Licenses to Trade 240
x j v TABLE OF CONTENTS.
MM
Offences Against the Laws of War 241
By Whom Punished 241
Spies 241
Guerillas 242
Pillaging 243
Crimes of Violence, etc 243
Temporary Occupation 244
History of the Different Views of 245
Present View of Military Occupation 246
Rights of Occupation 247
Martial Law 247
The State of Siege 247
Differences of Opinion as to the Meaning of the Term
Occupation 250
Opposing Views 250
Permanent Occupation 251
Retaliation 251
How Exercised in War 252
The Termination of War 253
Truces 253
What may be Done during a Special Truce 253
General Truces, Armistice 254
Treaties of Peace 255
How Different from Ordinary Treaties 255
Binding Character of 256
How Made 256
Preliminary and Definitive Treaties 257
When Binding 257
Effects of Treaties of Peace 257
Treatment of Occupied Territory 258
The Rules of Maritime Capture 259
Tendency and Character of 259
Forces Employed in Maritime War 260
Definition of Prize 261
Title to Prize, in Whom Vested 261
Duty of Captor 261
Ransom of Captured Vessels 263
Ransom Contracts 264
Hostages 265
Recapture and Postliminy 266
Prize Courts and their Jurisdiction 268
Character of Prize Jurisdiction 269
Law Applied in Cases of Prize 270
Procedure in Prize Cases 270
Right of Appeal in Prize Cases 278
TABLE OF CONTENTS. Xy
PACK
Rules for Determining the Nationality of Ships and Goods 272
References 274
CHAPTER XI.
NEUTRALITY. THE RIGHTS AND DUTIES OP NEUTRALS.
Definition of the Term 276
Character of the Neutral Relation 276
History of Neutrality 276
Origin and Development of the Modern Theory of Neutral
Obligation 277
Rule of the " Consolato del Mare " *279
General Acceptance of the Rule 279
The Principle of "Free Ships, Free Goods" 281
Rules of the Declaration of Paris 284
Binding Force of the Declaration 286
Effect of Claims to Exclusive Dominion upon the Develop-
~ ment of the Neutral Theory 288
The Monopoly of Colonial Trade 291
The Rule of 175(j 292
Development of the Theory of Neutrality among the Non-
Maritime States of Europe 292
Influence of England 293
General Acceptance of the Modern Theory in the Seven-
teenth Century; its Later History 294
Gradations of Neutrality 295
Permanent Neutrality 296
Armed Neutrality 296
Strict Neutrality 297
Neutral Duty of a State 297
Duties of Neutrals to Belligerents 299
Asylum to Troops and Ships 299
Asylum in the Case of Public and Private Vessels . . . 299
Neutral Territory, Immunity of from Acts of Belligerency 800
Responsibility of a Neutral State for the Acts of its Subjects . 302
View of England and the United States 303
Continental View of the Same Subject 305
Neutral Rights 306
Their Character and Extent 306
Case of the Chesapeake 307
Case of the Florida 308
Neutrality Laws 309
Neutral Obligation of a State Determined by International,
not Municipal, Law 310
English Neutrality iaws 311
TABLE OF CONTENTS.
PAGE
Neutrality Laws of the United States 313
Neutrality Laws of other States 314
Case of the Alabama 315
The Geneva Arbitration 327
References 335
CHAPTER XIL
CONTRABAND OF WAR.
History of the Practice 336
Power of a Belligerent over Neutral Commerce in Time of
War 338
General Character of the Restrictions 338
The Rules of Contraband Affect Chiefly the Acts of Indi-
viduals 339
Character of Contraband Trade 339
Rules for Determining Contraband 340
Difficulty of Stating a Precise Rule 340
The Question Determined by Prize Courts 341
Field's Rule 341
Rule of the Supreme Court of the United States .... 342
Application of the Rules 343
Destination of Ships and Goods 345
Destination, how Determined 345
Case of the Springbok 346
Case of the Peterhoff 349
The Doctrine of Continuous Voyages 351
Difference between the Old and New Rule 352
Penalty for Contraband Trade 353
Rule as to Innocent Cargo 354
Release of Neutral Ship on Surrender of the Contraband
Cargo 355
Neutral Conveyance of Enemy's Troops and Despatches. . . 356
Definitions of the Terms 356
The Destination Important 357
Cases of the Friendship and Greta 357
Presumption in the Case of Hostile Despatches 358
Despatches of a Belligerent to its Ministers and Consuls in
Neutral State 358
Conveyance of Mails in the Ordinary Course of Business . 359
Case of the Trent 360
Occasional Contraband 362
The Rule of Pre-emption 364
References . 365
TABLE OF CONTENTS. xv ji
CHAPTER XIII.
BLOCKADE. piGE
Blockade 366
Definition of 366
Right of Blockade, where Exercised 366
Valid Blockade 367
How Established and Notified 367
(a) By Proclamation 368
(b) By Notification or Endorsement 368
(c) By Proclamation and Notification 368
What Constitutes a Breach of 369
Penalty for Breach of 370
Cases of Innocent Entrance to Blockaded Ports .... 370
Duration of the Penalty 371
Breach of Blockade by Egress 372
Termination of Blockade 372
Pacific Blockade 373
References 373
CHAPTER XIV.
THE EIGHT OF SEARCH.
The Right of Search, a Belligerent Right 375
When and Where Exercised 375
Manner in which the Right is Exercised 376
Duty of Boarding Party 377
The Right of Visitation 379
Impressment of Seamen 380
Controversy between England and the United States . . 381
The Right of Convoy 388
Views of England as to 384
Views of the United States as to 385
Not a Right According to International Law 386
Searches Authorized in Time of Peace 386
(a) To Execute Revenue Laws 387
(b) On Suspicion of Piracy 387
(c) Search of Merchant Vessels by War Vessels of the
Same State 387
(d) Right of Approach to Verify Nationality 387
Case of the Virginius 388
References 392
B
xv iii TABLE OF CONTENTS.
PAOB
APPENDIX A. Instructions for the Government of Armies in
the Field. By Dr. Francis Lieber .... 395
B. The Geneva Convention of 1864 and 1868 . . 429
C. The Declaration of Paris of 1856 437
D. The Declaration of St. Petersburg of 1868 . . 440
" E. The Rules of War on Land, Recommended for
Adoption by the Institute of International Law
at its Oxford Session of 1880 442
INDEX ........ . . . o ...... - 461
LIST OF AUTHORITIES
CITED IN THE PREPARATION OF THIS VOLUME.
Abdy. See Kent's Commentaries.
Amos, Sheldon. Political and Legal Remedies for War. New
York, 1880.
The Science of Law. New York, 1875.
Azuni. The Maritime Law of Europe. 2 vols. New York, 1806.
Bar, E. International Law (Private). Edinburgh, 1885.
Bernard, Mountague. The Neutrality of England during the Amer-
ican Civil War. London, 1870.
Bluntschli, J. C. Le Droit de Butin en General et Specialement du
Droit de Prise Maritime. Brussels, 1877.
Le Droit International Codifie. Paris, 1874.
Das moderne Volkerrecht der civilisirten Staten als Reichsbuch
dargestelt. Leipsic, 1877.
Boyd, A. C. See Wheaton.
Brenton, E. P. The Naval History of Great Britain, 1783-1836.
2 vols. London, 1837.
Bryce. The Holy Roman Empire. London.
Bynkershoek, Cornelius. Treatise on the Laws of War. American
Edition. Philadelphia, 1810.
Calvo, Carlos. El Derecho Internacional. Paris, 1862.
Le Droit International. Paris, 1862.
Colleccion Completa de los Tratados de Todos los Estados de
la America Latina. 6 vols. Paris, 1862.
Cooley, T. M. The General Principles of Constitutional Law in the
United States of America. Boston, 1880.
Constitutional Limitations. 5th Edition. Boston, 1883.
Creasy, E. S. First Platform of International Law. London, 1876.
Gushing, Caleb. The Treaty of Washington. New York, 1873.
CiLssy, Ferdinand de. Dictionnaire ou Manuel Lexique du Diplo-
mate et du Consul. Leipsic, 1846.
XX
LIST OF AUTHORITIES.
Dahlgren, Admiral J. A., U.S.N. International Law. Boston, 1877.
De Lolme. The Constitution of England. Chandos Edition. Lon-
don and New York, n. d.
Dictionnaire Universel du XIX me Siecle. P. Larousse. 16 vols.
Paris, 1866.
Diplomatic Correspondence of the United States. Various years.
Washington, D.C.
Dumont, Jean. Corps Universel Diplomatique du Droit des Gens.
8 vols. Amsterdam and The Hague, 1726-31.
Elliot, Jonathan. The American Diplomatic Code. 2 vols. Wash-
ington, 1834.
Field, D. D. Draft Outlines of an International Code. 1 vol.
New York, 1874.
Foreign Kelations of the United States. Various years. Washing-
ton, D.C.
Garden. Histoire General des Traites de Paix. 14 vols. Paris,
1853.
Geneva Arbitration. Foreign Relations of the United States. 1872,
1873. 4 vols. Washington, 1873.
Gessner, L. Les Droits des Neutres sur Mer. 2d Edition. Paris.
Grotius, Hugo. De Jure Belli et Pacis. 1 vol. Paris, 1625.
Barbeyrac's French Edition. Various editions. Paris, 1724-
1768.
The Laws of War. First English Edition, 4to. London, 1738.
" " Whewell's English Edition. London, 1853.
(There are also translations in German, Dutch, Swedish, and Danish.)
Hatt, W. E. International Law. Oxford, 1880.
HaUam, H. The Constitutional History of England. Chandos Edi-
tion. New York and London, n. d.
HaUeck, H. W., Maj.-Gen. U.S.A. International Law, by Sir Shep-
stone Baker. 2 vols. London, 1878.
International Law. 1. American Edition. 1 vol. San Fran-
cisco, 1861.
International Law. 2. Students' Edition. Philadelphia, 1866.
Hautcfeuille, J. B. Des Droits des Nations Neutres, etc. Paris,
1859.
Heffter, A. G. Le Droit International Public de 1'Europe. Berg-
son's Edition. 1 vol. Paris, 1866.
LIST OF AUTHORITIES. xx j
Henshaw, J. S. A Manual for United States Consuls. New York,
1849.
Eertskt, Lewis. Complete Collection of Treaties and Conventions be-
tween Great Britain and Foreign Powers. London, 1827-35.
Map of Europe by Treaty since the Peace of 1814. 3 vols.
London, 1875.
Hildreth,E. History of the United States. 6 vols. New York, 1849.
Holmes, 0. W. See Kent.
Ihne, William. History of Rome. 5 vols. London, 1871.
Kent, James. Commentaries on American Law. Holmes's Edition.
2 vols. Boston, 1873.
Commentaries on American Law. Abdy's Edition. London,
1878.
Kluber, J. L. Droit des Gens Moderne de 1'Europe. Ott's Edition.
Paris, 1861.
Droit des Gens Moderne de 1'Europe. 2d Edition. Paris, 1874.
Laveleye, E. de. Des Causes Actuelles de Guerre en Europe et de
1'Arbitrage. Brussels and Paris, 1873.
Lawrence, W. B. A Study on Consular Jurisdiction (see Revue
de Droit Int.). Brussels, 1878.
See Wheaton.
Lawrence, T. J. Essays on Modern International Law. 1 vol-
London, 1884.
Laws. See Revised Statutes of the United States.
Larimer, J. The Obligations of Neutrals. Edinburgh, 1873.
Institutes of the Law of Nations. Edinburgh, 1884.
The Final Problem of International Law (see Revue de Droit
Int.). Brussels, 1877.
Maine, Sir H. 8. Ancient Law. New York, 1864.
Lectures on the Early History of Institutions. New York, 1875.
Popular Government. New York, 1886.
International Law. London, 1888.
Manning, William Oke. Commentaries on the Law of Nations.
Amos's Edition. London, 1875.
Martens, Ch. de. Recueil Manuel et Pratique des Traites, Conven-
tions, etc., 1760-1857. Leipsic, 1857.
Causes Celebres du Droit des Gens. Leipsic, 1827.
Nouvelles Causes Celebres du Droit des Gens. G. F. de Mar
tens's Edition. Leipsic, 1844.
xx ii LIST OF AUTHORITIES.
Martens, O. F. de. Precis du Droit des Gens Moderne de 1'Euiope.
Ch. Verge's Edition. 2 vols. Paris, 1864.
Recueil des Traites. 8 vols., with Murrhard's Continuation.
Paris, 1817-1844.
Recueil des Traites, with Samwer and Hofl's Continuation.
Gottingen, 1876.
Cours Diplomatique. 3 vols. Berlin, 1801.
Mitts, If. E. The Law of Eminent Domain. St. Louis, 1879.
Miltitz, A. de. Manuel des Consuls. London, 1843.
Mommsen. The History of Rome. 4 vols. New York, 1885.
Moore, John B. Moore on Extradition. 2 vols. Boston, 1891.
Mbrey, W. C. Outlines of Roman Law. New York, 1884.
Neumann, L. Handbuch des Consulatswesens mit besonderer Be-
riicksichtigung des 6'sterreichischen Reichs. Vienna, 1854.
Nys, E. Les Origines de la Diplomatic et le Droit d'Ambassade
Jusqu'ii Grotius. Brussels, 1884.
La Guerre Maritime. Brussels, 1881.
Ortolan, E. Diplomatic de la Mer. 2 vols. Paris, 1856.
Phillimore, Sir B. International Law. 4 vols. 2d Edition. Lon-
don, 1871.
Puffendorf. De JuraB Naturae et Gentium. London, 1672.
French edition by Barbeyrac, 1706.
Rarike, L. wn. History of the Popes. 2 vols. Philadelphia.
1841.
A History of England, principally in the 17th Century. 5 vols,
Oxford, 1875.
Universal History. Vol. 1. New York, 1885.
Revised Regulations, United States Army. Washington, 1881.
Regulations, United States Navy. "Washington, 1876.
Reports, American. Supreme Court.
Vols. 1-4, Dallas. Vols. 1-4, 1790-1800.
" 5-13, Cranch. " 1-9, 1800-1815.
" 14-25, Wheaton. " 1-12, 1816-1827.
" 26-41, Peters. " 1-16, 1827-1842.
" 42-65, Howard. " 1-17, 1843-1860.
" 66,67, Black. " 1,2, 1861,1862.
" 68-90, Wallace. " 1-23, 1863-1874.
" 91-103, Otto. " 1-10, 1875-1880.
LIST OF AUTHORITIES.
Reports, English. Admiralty and Prize.
Robinson's Admiralty Reports. 6 vols. Boston, 1861.
Dodson's Admiralty Reports. Boston, 1861.
Revised Statutes of the United States. Washington, 1878.
Revue de Droit International. Vols. i.-xiv. (1869-1882). Brussels.
Bymer, Thomas. Foedera, Conventiones, etc. Clarke's Edition.
London, 1816.
Schuyler, Eugene. American Diplomacy and the Furtherance of
Commerce. New York, 1886.
Spear, S. T. The Law of Extradition. New York, 1885.
Stephen, Sir J. F. History of the Criminal Law of England. 3 vols.
London, 1883.
Story, Joseph. Commentaries on the Conflict of Laws. Boston, 1834.
Commentaries on the Constitution of the United States. 2 vols.
Cooley's Edition. Boston, 1873.
Thiers. A History of the French Revolution. Philadelphia, 1847.
History of the Consulate and Empire. London, 1876.
Treaties of the United States. See Treaties and Conventions of the
United States. Washington, 1871. A later edition, with
valuable notes, was issued in 1889.
See also United States Statutes at Large, 1875, pp. 819--902 for
Analytical Index. Washington, 1875.
United States Statutes at Large. Annual Volumes, 1875-91.
Washington.
Upton, F. H. The Law of Nations Affecting Commerce during
War. 1 vol. New York, 186?.
Vattel, E. de. Le Droit des Gens ou Principes de la Loi Naturelle
Appliques a la Conduite et aux Affaires des Nations et des
Souverains. 2 vols. Leyden, 1758.
The Law of Nations. Chitty's English Edition. London, 1797.
Of the older works upon International Law, Vattel is
cited more frequently than any other. This is the case not
only in the works of text writers, but in the diplomatic
correspondence of modern states.
Ward, Robert. An Enquiry into the History and Foundation of
the Law of Nations in Europe. 2 vols. London, 1795.
Warden, D. B. On the Origin, Nature, Progress, and Influence of
Consular Establishments. Philadelphia, 1813.
The same. French Edition. Paris, 1815.
LI S T OF AUTHORITIES.
Wharton, F. The Conflict of Laws (Edition of 1881). Boston,
1881.
A Digest of the International Law of the United States. 3
vols. Washington, 1886.
Wheaton, Hemy. The Elements of International Law. 3 vols.
Philadelphia, 1836.
W. B. Lawrence's Edition. Boston, 1863.
R. H. Dana's Edition. Boston, 1866.
A. C. Boyd's Edition. London, 1878.
French Edition. 2 vols. Paris, 1841.
" " " Leipsic, 1874.
History of the Law of Nations in Europe and America. New
York, 1845.
Digest of the Law Maritime, Captures, and Prizes. New York,
1815.
Wildman, S. Institutes of International Law. 2 vols. London,
1849.
Wbolsey, T. D. Introduction to the Study of International Law
5th Edition. New York, 1878.
OUTLINES
OF
INTERNATIONAL LAW.
CHAPTER I.
DEFINITION AND HISTORY.
1. Definition. In its most general acceptation the
term law is applied to the rule or principle underlying
and controlling a sequence of events. When used in a
political sense, and with reference to the external and
internal relations of states, it is divided into :
(a.) Municipal Law comprising those rules of con-
duct which are sanctioned by a state and imposed by
its sovereign power upon its citizens or subjects. 1
1 In their desire to discriminate between law and morality some
English writers have given to the term law a narrower meaning than
is usual in other languages. This tendency is seen in their frequent
denial of the existence of a science of international law; a denial
based upon a narrow and technical definition of the term law itself.
From their point of view a law is not entitled to that name unless a
superior authority be conceived to exist, powerful enough to compel
obedience to its commands. If that which would be regarded as
law by this restricted definition be closely examined, it will be seen
that its right to the title is by no means clear. As most modern
states are now organized no law can long endure, or be rigidly en-
forced, which does not commend itself to the great mass of citizens
of a state. So soon as they cease to regard it as just, or even expe-
dient, its enforcement becomes difficult and the law is repealed, or
1
2 OUTLINES OF INTERNATIONAL LAW.
(5.) International Law comprising the aggregate
of rules and limitations which sovereign states agree
to observe in their intercourse and relations with each
other. As it deals with the relations of states in their
sovereign capacity, it is sometimes called Public Inter-
national Law, to distinguish it from that branch of the
science which has to do with the relations of states to
the citizens or subjects of other states, which is called
Private International Law or, as it is in question
whether the courts of a state shall apply their own
municipal laws or those of another state in the deter-
mination of a given cause, this branch of the subject
has sometimes been called the Conflict of Laws.
2. International and Municipal Law Compared.
The essential difference between the two systems of
law will be found to consist in the extent and character
of the binding force of each. The sovereign authority
of a state sanctions its own municipal laws, and, within
its territorial limits, enforces obedience to their provis-
ions. As sovereign states acknowledge no common
superior, it is obvious that there is no authority above
or outside a state which can effectively coerce it into
obedience to the provisions of International Law. An
individual who suffers an injury, or whose personal or
becomes a dead letter. Municipal laws, therefore, no less than inter-
national, in the last resort, depend for their efficiency upon the con-
sent of those whose conduct is to be regulated by them; and a
law which all nations expressly agree to observe, or tacitly accept
as an international usage, is as well entitled to consideration as is a
provision of municipal law which is enacted and obeyed because a
majority of citizens believe it to be just and necessary. It is not
necessary to say that the view here discussed is not shared by the
later school of English writers, of which Professor Sheldon Arnos
and Sir Henry Sumner Maine are the able representatives.
DEFINITION AND HISTORY. 3
property rights are invaded, seeks and obtains redress
in the courts of his country, which are authorized to
hear and decide his case, and are given power to en-
force their judgments and decrees. If a nation be
injured or invaded by another, or have a cause of dif-
ference with a foreign state, it cannot appeal to an
international tribunal of any land to remedy its wrong
or to adjust its difference, but must seek redress by
remonstrance or negotiation, or, as a last resort, by
war, when all peaceable methods of adjustment have
failed.
HISTORY OF THE SCIENCE.
3. The Oriental Monarchies. International law can
hardly be said to have existed in ancient times. The
absolute and crudely organized Eastern monarchies
were intolerant of the very existence of neighboring
nations, and lived in a state of constant warfare with
them. Of distant nations they knew nothing, and as
there must be communication or intercourse of some
kind between states in order that the rules may be de-
duced which shall govern their relations with each
other, it was impossible that a science resembling in-
ternational law could have existed among them.
4. The Greeks acknowledged the independent exist-
ence of other states, both within and without the Hel-
lenic peninsula. They had intercourse with them, and
sent and received ambassadors and diplomatic agents.
The pressure of circumstances obliged them, at times,
to enter into offensive and defensive alliances with each
other, and some of their later confederacies were highly
organized and possessed many elements of permanency.
All foreigners, however, were known to them, as barb*'
rians ; their customs in war were extremely cruel, and
4 OUTLINES OF INTERNATIONAL LAW.
breaches of faith were too common to favor the growth
of a science which depends to a higher degree than any-
other upon the sacred observance of agreements and
promises.
5. The Romans differed from the Greeks in that their
intercourse with foreign nations was so great in amount,
and so diversified in character, as to enable their jurists
to deduce from their international experience a crude
set of rules by which they conceived that their recipro-
cal intercourse with other states was governed. This
was known among them as the Jus Feciale. It differs
radically from the modern science of international law,
which is founded upon the consent of nations and pre-
supposes the existence of many independent states, and
rather expresses the imperfect and one-sided views of
international obligation which were held by the most
powerful state of the ancient world.
6. From the downfall of the Western Roman Empire
until the close of the dark ages a slow but gradual de-
velopment of the science can be traced, chiefly in the
history of the Mediterranean cities, which maintained
more or less intimate commercial relations with each
other during this period. Some of these cities had sur-
vived the wreck of the empire, and had maintained
their corporate existence during the inroads of the
Teutonic invaders. Others had been founded from
time to time, especially during the period of revival of
civilization. All had been able to endure the evil effects
of the feudal system only with extreme difficulty, and
it was not until those effects had in some degree passed
away that the elements of civilization, which had been
preserved among them, began to increase, and to exer-
cise an influence upon the rude society by which they
DEFINITION AND HISTORY. 5
were surrounded. The first signs of a revival began to
appear toward the close of the dark ages, and were
manifested in the marked interest shown in the revival
of manufactures, and the establishment and extension
of commercial intercourse.
7. Effect of the Revival of Commerce. Commerce, and
especially maritime commerce, cannot long be carried
on without its participants agreeing upon some rules
for its protection and regulation. All ships engaged
in it are exposed alike to the depredations of pirates
and the perils of the sea. The necessity of policing
harbors, of lighting dangerous coasts, and of maintain-
ing adequate port facilities must also have received
early attention. As the cities were themselves inde-
pendent, or were situated in different states and ac-
knowledged no common superior, such rules, to have
been regarded as obligatory, must have commended
themselves to those engaged in commercial pursuits,
must have existed with their tacit or expressed con-
sent, and their binding force could have continued
only so long as they were generally regarded as just
and equitable.
8. Early Codes of Maritime Law. Primitive codes
of maritime law, fulfilling most of these conditions,
and so possessing some of the characteristics of inter-
national law, are found to exist in the early sea-laws
of the commercial cities of southern and western
Europe. The most important of these were :
(a.) "The Jugements of Oleron." This was a body of
regulations governing the navigation of the western
seas, and is believed to have been drawn up in the
eleventh century. 1 Its authority was long recognized
1 Azuni, "Maritime Law," vol. i., p. 379.
6 OUTLINES OF INTERNATIONAL LAW.
in most of the Atlantic ports of France, and for this
reason portions of it were incorporated in the Maritime
Ordinances of Louis XIY.
(5.) " Tke Consolato del Mare ;" or, " Customs of the
Sea," was a more extensive collection of rules appli-
cable to the decision of questions arising in commerce
and navigation, both in peace and war. It also con-
tained rules defining the rights of belligerents and
neutrals, as they were then sanctioned and understood.
It was probably drawn up in the twelfth century, the
earliest authentic copy having been published in Bar-
celona in 1474. Its authors are unknown, but their
work exhibits a thorough knowledge of the Eoman
maritime law, of the early maritime customs of the
commercial cities of the Mediterranean, and of the
principles of contract, as applied to trade and naviga-
tion. Great weight was attributed to the work by the
commission to whom Louis XIY. intrusted the prepa-
ration of his celebrated Maritime Ordinances. Grotius
speaks of the " Consolato del Mare " as containing the
constitutions of France, Spain, Syria, Cyprus, the Bale-
aric Isles, Venice, and Genoa. 1 Its provisions on the sub-
ject of " prize law, besides the concurrence of the states
above named, coincided with all the treaties relating
to their provisions made during several succeeding cen-
turies," a and " they agree at present with the maritime
code of Europe, notwithstanding many attempts to re-
vise their regulations." s
(c.) " The Guidon de la Mar " is a work of more
comprehensive character than the "Consolato del
Mare," and is of considerably later date. It was drawn
1 Manning's "Law of Nations," p. 15.
*lbid. 3 Ibid.
DEFINITION AND HISTORY. 7
up toward the close of the sixteenth century, at the
supposed instance of the merchants of Rouen. It
treats principally of the law of maritime insurance,
the laws of prize, and contains a code of regulations
governing the issue of letters of marque and reprisal.
Other Codes of Maritime Law. The " Maritime Law
of Wisbuy," the " Customs of Amsterdam," the " Laws
of Antwerp," and the " Constitutions of the Hanseatic
League " are names applied to bodies of sea-laws simi-
lar to those already described, which were recognized
in the cities of northwestern Europe on the North
and Baltic seas.
These early systems had some elements in common.
The authorship of none of them is fully known. The
best opinion is that they were drawn up by commis-
sions of merchants or lawyers representing different
cities, thus giving them in some degree the character
of commercial treaties. All of them contain provisions
extracted from the earliest-known maritime code, the
Rhodian Laws, which were incorporated at an early
date into the general body of Roman Law, and were
recognized and sanctioned by the emperors Tiberius
and Hadrian. In some of them the subjects of neu-
trality and neutral rights are so broadly and liberally
treated as to leave but little room for improvement in
the codes of more" recent times. All of them evince, on
the part of their authors, a familiarity with the Civil
Law, and each in turn exercised a decided influence in
the preparation of those which followed it.
These sea-laws, however, applied to but one phase of
international relations maritime commerce and some
of them had been in existence several centuries before
the intercourse of states on land had become sufficiently
8 OUTLINES OF INTERNATIONAL LAW.
general to make it possible to deduce any of its under-
lying principles, or even to formulate the common
usages of states in peace or war. The nations of Eu-
rope during the period between the fifth and fifteenth
centuries were in formative, transition state, of which
little detailed history remains. General causes were
at work, however, some of which tended to favor, and
some to retard, the growth of international law. Some
of these were :
9. (a.) The Feudal System. As a system of land-ten-
ure this institution is of great antiquity ; as a system
of government in Europe it dates back to the migra-
tions of the Teutonic tribes into western and south-
western Europe, which were in progress during the
period between the third and sixth centuries.
" The German nations who passed the Ehine to con-
quer Gaul were in a great degree independent ; their
princes had no other title to their power but their valor
and the free election of the people ; and as the latter
had acquired, in their forests, but contracted notions of
sovereign authority, they followed a chief less in qual-
ity of subjects than as companions in conquest. Be-
sides, this conquest was not the irruption of a foreign
army, which only takes possession of fortified towns ;
it was the general invasion of a w^hole people in search
of new habitations ; and, as the number of the con-
querors bore a great proportion to that of the con-
quered, who were at the same time enervated by long
peace, the expedition was no sooner completed than
all danger was at an end, and of course their union
also. After dividing among themselves what lands
they thought proper to occupy, they separated, and,
though their tenure was at first only precarious, yet
DEFINITION AND HISTORY. 9
in this particular they depended, not on the king, but
on the general assembly of the nation.
" Under the kings of the first race the fiefs, by the
mutual connivance of the leaders, at first became an-
nual ; afterwards they were held for life. Under the
descendants of Charlemagne they became hereditary.
And when, at length, Hugh Capet effected his own
election, to the prejudice of Charles of Lorraine, in-
tending to render the crown, which, in fact, was a fief,
hereditary in his own family, he established the hered-
itaryship of fiefs as a general principle ; and from this
epoch authors date the complete establishment of the
feudal system in France.
" On the other hand, the lords who gave their suffrages
to Hugh Capet forgot not the interest of their own
ambition. They completed the breach of those feeble
ties which subjected them to the royal authority, and
became everywhere independent. They left the king
no jurisdiction, either over themselves or their vassals ;
they reserved the right of waging war with each other ;
they even assumed the same privilege, in certain cases,
with regard to the king himself ; so that if Hugh Capet,
by rendering the crown hereditary, laid the foundation
of the greatness of his family, and of the crown itself,
yet he added little to his own authority, and acquired
scarcely anything more than a nominal superiority
over the number of sovereigns who then swarmed in
France." ' This system of government, which seems to
have been the only one of which the Teutonic mind
could conceive, was carried by the same methods into
1 De Lolme, "The Constitution of England," book i., chap, i.,
pp. 148, 149.
10 OUTLINES OF INTERNATIONAL LAW.
Italy and Spain, and was suddenly introduced into
England at the period of the Norman Conquest.
The system culminated when the modern states of
Europe began to assume something of their present
form. The great monarchies could only grow in size
and strength at the expense of the power and posses-
sions of the feudal nobles, and so soon as the former
were securely established the power of the latter began
to decline. While the system lasted its effects were,
on the whole, unfavorable to the growth of interna-
tional law. Europe was divided into a large number
of small states, or groups of states, ruled by dukes and
barons, each in a condition of constant hostility with
his neighbors. Intercourse was always difficult, and
at times impossible. Commerce by land could not
exist, and the growth of towns was hampered and
restricted. War was the rule, and peace the excep-
tion. The rules of war were cruel and harsh in the
extreme. Quarter was rarely given ; the garrisons of
besieged towns were put to the sword ; prisoners of
war were reduced to slavery ; and so great was the
mutual distrust of sovereigns that they maintained but
little intercourse with each other, and obtained such
information as they desired by questionable means
through agents or spies.
10. (5.) The Institution of Chivalry. This came into
existence during the feudal period, and was in great
part an outgrowth of the Crusades. It contributed
powerfully to ameliorate some phases of the laws of
war. Its code applied at first only to the conduct of
knights towards each other ; but, in so far as it recog-
nized and practised, to some extent, the principles of
Christianity, its effects were soon felt in the milder
DEFINITION AND HISTORY. H
treatment of captives and slaves, and in the different
and stricter views which, began to prevail in the matter
of keeping faith with enemies and strangers. 1
11. (c.) The Roman Church. Unquestionably the
most powerful influence that was exerted upon the sci-
ence of international law during its formative period
was that of the Koman Church. As the political pow-
er of the Western Empire decayed, and finally dis-
appeared, the Church, an organization having at once
a religious and a secular aspect, became for a time the
most powerful organ of civilization in that portion
of "Western Europe which had formerly acknowledged
the sway of the Koman emperors. Its authority was
generally acknowledged and respected, and its minis-
ters and bishops, in addition to their sacred functions,
frequently found themselves called upon to perform
duties entirely secular in character. Out of this state
of affairs grew the Canon Law, a code based, to a great
extent, upon the Roman Law, but adapted to the po-
culiar exigencies of the Church and times. While in-
tended primarily as a constitution for the government
of the Church and the administration of its vast inter-
ests, its provisions were found to be applicable to the
decision of a great variety of controversies, ranging in
importance from the disputes of private individuals
to the adjustment of difficulties of serious international
concern.
It is a tribute to the profound influence of the Roman
Empire upon the minds of men that the theory of uni-
versal sovereignty should have so long survived its
1 For an account of the usages of war in the Middle Ages see
Ward's "Inquiry into the Law of Nations before Grotius;" vol. L,
chap, vi.-is.
12 OUTLINES OF INTERNATIONAL LAW.
downfall, and that it should have been deemed neces-
sary, in the Middle Ages, to find a substitute for it in
existing institutions. Such a substitute was found in
the empire founded by Charlemagne, but with an im-
portant modification. The temporal head of Christen-
dom was the German emperor ; its spiritual head was
the Koman pontiff ; but, as the line of division was not
sharply drawn, these personages often came into con-
flict, and " the international law of the Middle Ages
was influenced enormously by the conflicting claims of
the pope and the emperor." ' As the imperial power,
at any time, depended largely upon the personal influ-
ence and character of the emperor, and as no line of
political policy was long adhered to by them, the pa-
pacy, having a determined and well-settled policy, in
time began to acquire a preponderance even in tem-
poral affairs.
" The idea of a common superior still lingered among
the nations, and greatly assisted the Roman pontiffs in
their efforts to obtain a suzerainty over all temporal
sovereigns. For as the empire founded by Charlemagne
gradually decreased in extent till it scarcely extended
beyond the limits of Germany, more and more diffi-
culty was felt in ascribing to it universal dominion.
Yet no one dreamed of asserting boldly that indepen-
dent states had no earthly superior ; and therefore, when
the papacy came forward with its claims, men's minds
were predisposed to accept them. As an arbitrator
between states the pope often exercised great influence
for good. In an age of force he introduced into the
settlement of international disputes principles of hu-
1 Lawrence, " Essays on Modern International Law," p. 149.
DEFINITION AND HISTORY. ^3
inanity and justice, and had the Roman Curia always
acted upon the principles which it invariably professed,
its existence as a great court of international appeal
would have been an unmixed benefit." '
(Ecumenical Councils. " The assembly of deputed
representatives from the different Christian states gave
to the (Ecumenical Councils the composition of a sort of
European congress. Besides the settlement of articles
of faith, and the deposition or excommunication of
princes, determined in these councils, there are distinct
examples in which the pope was made referee in ques-
tions of international controversy. At the Council of
Lyons, convened by Gregory X., in 12 74, the inhab-
itants of Ancona having contested the right of the
Venetians to levy tolls, and exercise other rights of
exclusive dominion in the Adriatic, the question was
referred to the pope and was discussed. Judgment
was given that the inhabitants of Ancona had no
grounds for their complaints, and that the Venetians
were possessed of the sovereignty of the Adriatic.
Xone of the ambassadors or princes present at the
council objected to the decision, and the judgment
passed without any protest respecting its validity.
Decisions on questions were given by the pope indi-
vidually, unassisted by such councils ; as, for instance,
when the Spaniards were pushing their discoveries in
the West, and the Portuguese in the East, these nations
referred to the pope for limits, in case their exploring
parties should claim the same territories, and Alexan-
der YI. accordingly gave them, in his well-known bull,
a line of demarcation." " The advantage that might
1 Lawrence, "Essays on Modern International Law," p. 149.
14: OUTLINES OF INTEKNATIONAL LAW.
have been derived from the papal interference would
have been very great had it been an authority exer-
cised for justice, instead of abused for ambition." 1
12. JRise of the European Monarchies. During the
period between the fourteenth and sixteenth centuries,
and as a consequence of the decline of the feudal no-
bility, the great monarchies of Europe began to acquire
strength and consistency, and to assume something of
their present territorial form. These governments
were absolute in character, and although some of them
were at times administered with considerable liberality,
in none were popular rights recognized, and none were
limited by representative institutions. Not only were
they absolute in form, but in most of them the idea of
sovereignty had become associated with the person of
the sovereign. He was the head of the state ; the title
to its territory and property w r as vested in him, and
he was held to be able to dispose of it at will. Such
restraints as were established upon the royal power had
chiefly to do with internal affairs, and rarely extended
to his foreign relations. Such being the case, diplo-
matic relations soon became common, alliances were
entered into, agents were established at foreign capi-
tals, through whom information was obtained as to the
schemes and intentions of foreign powers. Embassies
were sent and received, ambassadors maintained, and
great wars were undertaken. Conquests were made,
and territory changed hands ; sometimes as a result of
war, sometimes after the manner of a transfer of prop-
erty among private individuals.
1 Manning, pp. 12 and 13, citing Selden, "De Dominio Maris,"
i., c. xvi.
DEFINITION AND HISTORY. 15
Such intricate and important international relations
could not long exist without furnishing precedents of
sufficient value to be cited in negotiation, or without
some practices and usages acquiring, by frequent repe-
tition, or common consent, the binding force of inter-
national customs. The sea-laws furnished a basis upon
which to erect a code of maritime law ; their recent
experience in war and negotiation furnished abundant
materials for the preparation of a code of international
usages, and the Roman Law furnished a stock of legal
maxims and principles with which to bind the whole
fabric together.
13. The Influence of Grotius. At the close of this
period, and at a most opportune moment in the history
of the science, there appeared the first authoritative
treatise upon the Law of Nations, as that term is now
understood. It was prepared by Hugo Grotius, a
native of Delft, in Holland. He was a man of great
learning, of considerable experience in public affairs,
and a profound student of the Roman Law; and his
treatise, which was published early in the seventeenth
century, 1 is, in substance, an application of its princi-
ples to the external relations of states. It was at once
perceived to be a work of standard and permanent
value, of the first authority upon the subject of which
it treats. General Halleck justly observes with refer-
ence to it that it " has been translated into all lan-
guages, and has elicited the admiration of all nations
and of all succeeding ages. Its author is universally
regarded as the great master-builder of the science of
International Jurisprudence." a
1 1625. * Halleck, vol. I, p. 12.
16 OUTLINES OF INTERNATIONAL LAW.
Great as were the inherent merits of Grotius's work,
it could never have exercised so decisive an influence
upon state affairs as it did, had it not appeared at a
time when the existing political conditions were espe-
cially favorable for its reception. The Thirty Years'
War, then drawing to a close, had been marked during
its entire course by a refinement of barbarous cruelty,
and by acts of atrocity perpetrated upon the unarmed
and unoffending inhabitants of the valley of the Rhine
which stand without a parallel in the history of an-
cient or modern war. Many of the military operations
had been undertaken rather with a view to the chance
of pillage than from a desire to injure or defeat the
enemy. Population had diminished, great tracts of
territory had been laid waste, and commerce and man-
ufactures had well-nigh disappeared. With an experi-
ence of the horrors of war so bitter and long continued
as that which Europe was even then undergoing, it is not
remarkable that men should have been willing to listen
to any scheme which promised to mitigate the severity
of war, or to lighten, in any degree, its terrible burdens.
But, great as the losses had been in men and material
wealth, it may be doubted whether a desire to amelio-
rate the existing usages of war would have been, of it-
self, an agency sufficiently potent to bring about a re-
form of International Law, had not another and a more
powerful factor contributed directly to the same end.
During the continuance of the Thirty Years' War
the composition of the belligerent states and the pur-
poses for which the war was carried on had undergone
a complete change. The contest had originated in an
attempt of the Protestant princes to achieve their po-
litical and religious independence. In its later stages
DEFINITION AND HISTORY. -^
it had been transformed into a struggle for preponder-
ance between France and Austria, and it had termi-
nated, in 1648, to the complete advantage of the former
power. In the course of the war the old idea of papal
and imperial supremacy had finally disappeared. The
ancient standard of international obligation had ceased
to exist, and a newer and more enduring standard had
to be erected in its place. As the idea of a common
earthly superior was no longer recognized, it became
necessary to invent a theory which, while conforming
to existing political conditions, should furnish a safe and
practicable rule for the conduct of interstate relations.
Such a scheme was that proposed by Grotius. " His
International Law had two sources the Law of Nature
and the consent of all or most nations ; but the latter
is only supplementary to the former, and cannot or-
dain anything contrary to it." l The Law of Nature,
which is but another name for the Jus Gentium of the
Koman Law, furnished the legal basis for Grotius's
work, and from it he derived his fundamental idea of
the equality and independence of sovereign states.
States, like men, were, from his point of view, controlled
in their actions and relations by the operation of a law
of nature as ancient as the universe itself. This law
could be added to, but not modified. He believed it
to constitute a standard by which the conduct of states
and the actions of individuals could be finally judged ;
and he imagined that the Eoman Law afforded an
historical example of its successful application in inter-
national affairs.
"We now know that Grotius's theory of international
1 Lawrence, " Essays on Modern International Law," p. 179.
2
18 OUTLINES OF INTERNATIONAL LAW.
obligation was in the main correct, however erroneous
may have been his conception of its origin and sanc-
tion; and it is a remarkable tribute to the intrinsic
excellence of his work that it has endured so success-
fully, for more than two centuries and a half, the as-
saults of destructive criticism and the crucial test of
practical experience. Xone of the many ingenious
theories which have been advanced in opposition to
his have received even transient recognition, and upon
the foundations so deeply and solidly laid by its im-
mortal founder the fabric of the science securely rests.
14. THE SOURCES OF INTERNATIONAL LAW.
(a.} Treaties and Conventions. As International Law
derives its binding force from the consent of nations,
and as treaties are compacts, freely entered into, de-
scribing the conditions and defining the limitations
which nations agree to observe in their intercourse
with each other, it follows that they are of the highest
authority in determining what that law is upon any
point covered by their stipulations. For example,
many naturalization treaties stipulate for a period of
residence, usually five years in length, as a condition
preliminary to naturalization. This warrants the in-
ference that a period of residence is a necessary pre-
liminary to a change of national allegiance. Other
treaties provide that consuls may, under certain cir-
cumstances, perform judicial acts in foreign ports. This
warrants the inference that no such exercise of consular
jurisdiction is legal unless authorized by treaty stipu-
lations.
(.) The Judgments of International Courts, or Boards
of Arbitration. These tribunals are created for the
DEFINITION AND HISTORY. 19
express purpose of adjusting international disputes and
differences. Their judgments, therefore, should con-
stitute precedents as binding upon sovereign states as
are the decisions of municipal courts upon individuals
who carry their difficulties to them for adjustment.
(c.) The Diplomatic Correspondence of States, and
other State Papers, upon Subjects Connected with For-
eign Relations. This is a valuable source of informa-
tion upon all questions connected with the law and
usages of nations. The opinions of law officers and
attorneys-general to their respective governments, the
correspondence of a state with foreign powers, and the
reports of "commissions created for the purpose of ob-
taining and digesting information upon special sub-
jects, are examples of this class. Unfortunately much
correspondence between governments is still regarded
as confidential, and so is not easily accessible. Eng-
land and the United States, however, publish at inter-
vals the greater part of their correspondence with for-
eign powers.
(d.~) The Roman Law. This is the earliest, as it is in
many respects the most complete and elaborate code
of law that has ever existed. Most of the codes of
municipal law now in force among the Continental
states of Europe are either directly based upon it, or
derive from it the greater part of the legal principles
which they contain. As it was the only system of law
with which the earlier writers on International Law
were familiar, and as its principles seemed to be suffi-
ciently general, in character and scope, to apply to the
reciprocal relations of states, its authority was fre-
quently invoked by them in the preparation of their
treatises.
20 OUTLINES OF INTERNATIONAL LAW.
The earliest form of the Roman Law, of which we
have any authentic knowledge, is that contained in the
Code of the Twelve Tables. Like all ancient legal sys-
tems, it was a development of the governmental expe-
rience of the Roman people, to whom its provisions
exclusively applied. Such aliens and strangers as were
resident in the city were, at first, without legal rights
or privileges, and so long as Roman citizenship main-
tained its peculiar character of exclusiveness the sanc-
tions and penalties of the Civil Law were held to be
binding upon Roman citizens alone.
As the alien class increased in numbers, as well as
in wealth and importance, it became necessary to give
to its members a definite legal status, and to secure to
them some measure of protection in their persons and
property. " The expedient to which they resorted was
that of selecting the rules of law common to Rome
and to the different Italian commonwealths in which
the immigrants were born. In other words, they set
themselves to form a system answering to the primi-
tive and literal meaning of Jus Gentium, that is, law
common to all nations. The Jus Gentium was, in fact,
the sum of the common ingredients in the customs of
the old Italian tribes, for they were all the nations
whom the Romans had any means of observing, and
who sent successive swarms of immigrants to Roman
soil. Whenever a particular usage was seen to be
practised by a large number of separate races in com-
mon, it was set down as part of the law common to all
nations, or Jus Gentium." 1
" It is almost unnecessary to add that the confusion
1 Maine, " Ancient Law," p. 47.
DEFINITION AND HISTORY. 21
between Jus Gentium, or law common to all nations,
and International Laio, is entirely modern. The clas-
sical expression for International Law is Jus Feciale,
or the law of negotiation and diplomacy." ' " No pas-
sage," says Sir Henry Maine, in his " Ancient Law,"
" has ever been adduced from the remains of Roman
Law which, in my judgment, proves the jurisconsults
to have believed Natural Law to have obligatory force
between independent commonwealths ; and we cannot
but see that to the citizens of the Eoman Empire, who
regarded their sovereign's dominions as conterminous
with civilization, the equal subjection of states to
the Law of Nature, if contemplated at all, must have
seemed at most an extreme result of curious specula-
tion. The early modern interpreters of the Jurispru-
dence of Rome, misconceiving the meaning of the Jus
Gentium, assumed without hesitation that the Romans
had bequeathed to them a system of rules for the ad-
justment of international transactions." 2 It is not
necessary to suppose, however, that Grotius was mis-
taken, either in his view of the Roman Law, or in his
application of its principles to states in their interna-
tional relations. That system was the outgrowth of
long experience, and its methods of dealing with the
legal relations of individuals were elaborated with
great care. From the standpoint of the Civil Law the
Roman landowner was regarded as an independent
proprietor within the boundaries of his landed estate.
It provided elaborate and adequate remedies, which
were applied whenever his personal or property rights
were trespassed upon or invaded, and it regarded all
1 Maine, " Ancient Law," p. 47. * Ibid. p. 50; Morey, p. 207.
22 OUTLINES OF INTERNATIONAL LAW.
citizens as equal before the law. Grotius, in his great
work, but applied these principles to sovereign states.
Each state, according to his view, was independent
within its territorial limits, and all states were equal
in dignity and in the number of sovereign rights which
they enjoyed, however unequal they may have been in
power and influence.
These principles lie at the foundation of modern In-
ternational Law, and such of its doctrines as have re-
ceived general sanction are based directly upon them.
It was thus easy for Grotius and his successors to de-
duce from the Koman Law by far the greater part of
the system of International Law as it exists to-day. In
its fundamental principles it has changed but little
since Grotius's day. In its detailed rules it is under-
going a slow but constant modification ; the tendency
being toward greater liberality of view in the treat-
ment of new questions as they arise, and in the modi-
fication or amendment of old practices, to adapt them
to the conditions imposed by modern civilization. Like
Municipal Law, it keeps pace with the development of
the human race; it is affected by that development,
and, in turn, reacts upon it, influencing the current of
human events to a remarkable degree.
(e.) The Works of Text Writers. The writings of
those who have made the history and development of
international usages a subject of special study will al-
ways constitute our chief source of knowledge upon
the subject. The earlier writers were roughly grouped
into two schools. One, made up chiefly of Continental
authors, whose works were largely based upon the Ko-
man Law, and by whom great authority was attached
to the views of text writers. The other, composed of
DEFINITION AND HISTORY. 23
English and American writers, whose works, strongly
influenced by the Common Law of England, attach the
greatest weight to the decisions of competent courts
and to the precedents established by the usages of na-
tions and recognized by them as binding in their inter-
course with each other. The present tendency is to
obliterate this distinction. The history of both the
Roman and Common Law has been exhaustively stud-
ied, and is now generally known, and the historical
method of treatment is found to be as successful in its
application to International as to Municipal Law.
A decided unanimity of opinion among authors as
to the reason or justice of a particular usage is strong
evidence of its general acceptance as a rule of Interna-
tional Law. " "Writers on International Law, however,
cannot make the law. To be binding, the law must
have received the assent of the nations who are to be
bound by it." '
The Decisions of Municipal Courts upon Questions
of International Law. Although the courts of a state
have chiefly to do with the decision of questions aris-
ing under its own municipal law, they are sometimes
called upon to recognize and apply the rules of Inter-
national Law in the decision of particular cases. This is
found to be necessary when the national character of
an individual is drawn in question, or his capacity to
perform certain acts ; as to make contracts or to hold
or transfer property. In the decision of what are called
Prize cases, which is usually an incident of the juris-
diction of Admiralty Courts, the law administered is
almost exclusively international. The decisions upon
1 Justice Cockburn, in R. vs. Keyn; Stephens, "History of the
Criminal Law," vol. ii., p. 41.
24 OUTLINES OF INTERNATIONAL LAW.
questions of International Law which have been ren-
dered by Marshall and Story in the United States, and
by Lord Stowell, Sir Robert Phillimore, and Dr. Lush-
ington in England, are of the highest authority, and
have been repeatedly cited as precedents in negotia-
tion.
(f.) The Municipal Law of States. Much informa-
tion may be derived from this source upon questions
having at once a municipal and an international phase.
Such is the case with the subjects of citizenship and
naturalization; of neutrality, extradition, and piracy.
The army and navy regulations of different states, and
the rules adopted by them for the guidance of their
diplomatic and consular representatives, throw light
upon many questions of international usage.
(ff.) General Histories, the Histories of Important
Epochs, and the Biographies of Eminent Statesmen.
From this source much information may be obtained
as to the history of the wars, negotiations, and treaties
which have exercised a great, and sometimes decisive,
influence upon the mutual relations of states and upon
the development of the science of International Law,
and, finally,
(h.} The Divine Law. The highest standard of eth-
ics and morals, and the surest guide of conduct in the
affairs of individuals and states.
15. Divisions of International Law. The rules of
International Law are susceptible of reference to one
or both of two sources :
(a.) Those deduced from relations based upon eth-
ical or moral principles. To this class belong good
faith, humanity, and comity, the faithful observance
of treaties and agreements.
DEFINITION AND HISTORY. 25
(5.) Those deduced from usage or agreement, and
so based upon the consent of nations.
Hence International Law is divided into :
(1.) The Natural Law of Nations. As men living
together in communities are guided in their actions
and relations by well-known moral laws, so nations,
which are but societies, or aggregates, of men, and
the individuals who control and represent them, are
guided in their actions by the same moral rules. From
this body of ethical principles, governing alike indi-
viduals and nations, is deduced the natural law of
nations.
The code of Christian ethics contained in the New
Testament serves at once as a rule of conduct in inter-
national relations, and as a standard by which that
conduct can be judged, and its inherent rightfulness
or wrongfulness determined.
(2.) The Positive Law of Nations. " As between na-
tion and nation there are no laws properly so called,
though there are certain established usages of which
the evidence is to be found in the writings of persons
who give the relations which have prevailed between
nation and nation." ' That body of usages which is
deduced from the history of international relations is
called the Positive Law of Nations. This branch of
the subject is sometimes divided into
(a.) The Customary Law of Nations, including those
rules which are deduced from usage and precedent.
(&.) The Conventional Law of Nations, including those
rules which are based upon, or deduced from, the con-
1 Stephens, "History of the Criminal Law of England," vol. i.,
pp. 88, 34.
26 OUTLINES OF INTERNATIONAL LAW.
sent of states as expressed in the treaties and conven-
tions entered into by them.
16. Parties to International Law. The parties to
International Law are sovereign states. In the fullest
acceptation of the term it prevails only among the
Christian states of Europe and those originally colo-
nized by them in America and elsewhere. This is due
to the fact that these states have had a common his-
torical development, and recognize the same, or nearly
toe same, standards of law and morals. The area over
which it operates, however, is slowly extending. Tur-
key became a party to it in 1856, and it is steadily
gaining recognition in China, Japan, and other Asiatic
states, though its acceptance in those countries can
never be so complete as in the western nations of Eu-
rope and America.
References. The history of the science of International Law has
been made the subject of treatment by many writers, both Eng-
lish and Continental. The earliest English work upon this sub-
ject is that of Ward, whose " Enquiry into the Foundation and
History of the Law of Nations in Europe" appeared in 1795.
Wheaton's " History of the Law of Nations " is the fullest, and
in many respects the most satisfactory, work of the kind in the
English language. To a certain extent "Ward and Wheaton sup-
plement each other. The legal and historical works of Hallam,
Freeman, Stephens, Amos, and Maine in English, and of Mornmsen,
Ranke, and Ihne in German, have contributed to throw much light
upon the history of society and institutions, and it is impossible
to understand the development of International Law without some
knowledge of the historical development of the states and socie-
ties of whose relations with each other International Law is but
the record. Most works upon the Law of Nations contain, in their
introductory chapters, more or less full accounts of the history of
the science. Among them may be mentioned those contained in
Halleck, chaps. 1, 2 ; G. F. De Martens, 1-15 ; Philliniore, Intro-
DEFINITION AND HISTORY. 27
duction and chaps. 3-9; Heffter, 1-13; Hall, Introduction and
p. 2, note ; and Laurent, " fitudes sur 1'Histoire de FHumanitg," liv.
ii., chaps. 1-3 ; liv. iii., chaps. 1-4 ; liv. iv., chaps. 1, 2. The pro-
found influence exerted by the Roman Law upon the development
of the science is now fully appreciated. For a discussion of the
question, see Maine, " Ancient Law," pp. 92-108 ; Amos, " Science
of Law," pp. 332-341 ; Morey, " Outlines of Roman Law," pp. 207-
214.
General Bibliography of the Subject of International Law. For
a full bibliography of the subject of International Law, see G. F.
De Martens, " Precis du Droit de Gens," pp. 357-441 ; Kliiber,
"Droit de Gens," pp. 419-468. For a similar work in English,
see Woolsey's " International Law," appendix I, pp. 413-429.
CHAPTER II.
STATES AND THEIR ESSENTIAL ATTRIBUTES.
1. A state is a society of persons having a perma-
nent political organization, and exercising within a
certain territory the usual functions of government.
The terms state and nation are by no means synon-
ymous. The latter involves the idea of a community
of race, the former is applied to a society of men or-
ganized under some form of government and occupy-
ing a fixed territory. A nation may furnish a contin-
gent of population to several states. There is a Polish
population in Austria, Eussia, and Prussia ; a German
population in Prussia and Austria ; on the other hand,
the Russian and Ottoman empires include several dis-
tinct nationalities. As applied to societies of men, the
term state represents an artificial, the term nation a
natural, division. In recent times the tendency to
reorganize states upon a national basis has been very
marked. The movements within the present century
which have resulted in quite a large measure of na-
tional unity in Germany and Italy are illustrations of
this tendency.
2. Sovereignty of a State. The sovereignty of a state
is its inherent right to exercise jurisdiction over all
questions arising within its territorial limits, and to
control and regulate the actions and relations of all its
citizens or subjects.
3. Government of a State. The government of a
STATES AND THEIR ESSENTIAL ATTRIBUTES. 29
state is the organ through which its sovereign powers
are exercised, and through which it maintains inter-
course with other states. A constitutional govern-
ment is one in which the powers of sovereignty are
defined and limited in accordance with the principles
of a fundamental law called a constitution. ISTone of
the modern Christian states that acknowledge the sanc-
tions of International Law can be said to be absolutely
without a constitution of some sort. There may be no
substantial guarantees of individual right or of per-
sonal freedom ; indeed, such rights may not exist, or
may be restricted within very narrow limits. It may
be a formal written instrument, as in the United States ;
it may be in great part unwritten^ as is the case of the
British constitution ; or, as in many Continental states
of Europe, it may be embodied in the municipal law,
from which those principles which are of a fundamen-
tal character may be deduced and determined. In
some form it must exist. Without such a body of
fundamental principles no modern government could
be carried on.
4. Classification of Governments. Governments are
classified according to the source of sovereign power,
or the manner in which it is exercised in each.
A monarchy is a government in which the sovereign
powers are concentrated in a single person. An abso-
lute monarchy is one in which the concentration of
sovereign powers is real. A limited monarchy is one
in which the royal authority is restricted in its exer-
cise, usually by representative institutions of some
kind. These restrictions may be so extensive in char-
acter as to reduce the sovereign to the condition of an
hereditary executive. This is the case in England.
30 OUTLINES OF INTERNATIONAL LAW.
An Aristocracy is a government in which the sov-
ereign powers are held to reside in a class. If the
ruling class constitutes a small proportion of the
population the resulting government is called an oli-
garchy.
A Democracy is a government in which the sovereign
powers are held to reside in all the people, and are ex-
ercised by them directly.
A Republic, or, as it is sometimes called, a Demo-
cratic Republic, is a government in which the sovereign
power resides in the people, but is exercised by repre-
sentatives elected by them for that purpose.
Classification of the Sovereign Powers, The powers
of sovereignty are susceptible of classification, and are
usually arranged under three heads executive, legis-
lative, and judicial. The amount of influence and the
degree of independence possessed by each department
depends, in any particular case, upon the constitution
of the state. It can only be said that the distribution
of powers varies greatly in different states, no two ex-
actly resembling each other in this respect. 1
5. Governments are again classified, according to
the opinion or belief of the person using the term, into
governments de facto and de jure. A de facto govern-
ment is one actually existing in a state, and for the
time possessing sufficient strength to exercise sovereign
powers. Thus the de facto government in France, in
1792, was that carried on by the National Convention.
A de jure government is one which the person using
1 The most successful modern experiments in government, how-
ever, have been those in which these departments exist, and are
constituted in such a manner that each acts as a check upon the
povjer and jurisdiction of the others.
STATES AND THEIR ESSENTIAL ATTRIBUTES. 31
the term believes to be the rightful government of the
state. It may or may not be in enjoyment of the
power of sovereignty. Thus, in 1792, Austria regard-
ed the government of Louis XVI. as the de jure gov-
ernment of France. From the standpoint of Interna-
tional Law the term government is usually applied
to the de facto government of a state, and such gov-
ernments are generally recognized in fact, if not in
name.
6. The Essential Attributes of Sovereignty. The at-
tributes which are essential to the conception of a sov-
ereign state are three in number Sovereignty, Inde-
pendence, and Equality.
The term Sovereignty has already been defined. It
is the inherent right of a state to exercise jurisdiction
over all questions arising within its territorial limits,
and to control and regulate the actions and relations
of all its citizens or subjects.
The conception of Independence is included in that
of sovereignty. It involves an immunity from all
interference in the internal affairs of a state, and a
corresponding obligation to abstain from interfering in
the internal concerns of other sovereign states.
It has been seen that a state possesses a certain num-
ber of sovereign rights and powers. These rights are
possessed in precisely the same number and to the same
degree by every sovereign state. This is called the
Equality of States. It is not to be inferred from this
definition that all states are equal in dignity, impor-
tance, or power. It is only asserted that each state
possesses the same number of sovereign rights and
powers, and each to the same degree that they are pos-
sessed by every other state. For example : England
32 OUTLINES OF INTERNATIONAL LAW.
and Portugal have the same right to borrow money, to
send ambassadors, and to make treaties of alliance.
But whether one can borrow money at a lower rate of
interest than the other, whether the ambassadors of
both powers at Berlin have the same influence, and
whether an alliance with one will be as advantageous
as with the other, are questions that depend upon the
financial resources, political influence, and military
power of each state, which are all of them very un-
equal.
A Sovereign State is one which retains and exercises
all of its essential attributes of sovereignty, which has
parted with none of them, but retains them all unim-
paired. Russia, France, England, China, and Japan
are sovereign states.
A Dependent, or Semi-sovereign State, is one which
has lost or surrendered some of its essential attributes
of sovereignty, or which was not endowed with per-
fect sovereign rights when it was constituted a state.
The Ionian Islands, placed by the Treaty of Paris un-
der the protection of Great Britain, are cited by Kliiber
as a perfect example of a semi-sovereign state. l
7. A Confederation is an artificial state, resulting
from the more or less complete union of two or more
states. This involves the temporary or permanent sur-
render of some sovereign rights on the part of each of
the confederated states to the artificial state created
by the treaty of union, or constitution of the confed-
eracy. The number and importance of the sovereign
rights surrendered by the component states will deter-
mine the character and strength of the confederacy.
1 Phillimore, vol. i., p. 100.
STATES AND THEIR ESSENTIAL ATTRIBUTES. 33
The United States, under the Articles of Confedera-
tion, the Holy Eoman Empire, the Zollverein, and the
German Confederation, as reorganized in 1815, are ex-
amples of loose confederations. The present German
Empire is a stronger confederation. The Swiss Con-
federation, the union of England and Scotland, the
United States under the present Constitution, are ex-
amples of close political union.
Rule for Determining the Strength of a Confedera-
tion or Union. Between these extremes there may
exist many kinds of confederacies. To determine the
political strength of any particular confederation its
constitution must be examined, and an accurate account
taken of the powers surrendered and retained by each
component state. If the power of making political
treaties, of sending and receiving ambassadors, and of
separate peace or war are vested in the central gov-
ernment, the confederacy is said to be close or strong.
If a considerable number of these powers are retained
by the component states the confederation is said to
be loose or weak.
8. Hight of a State to Change its Constitution and
Form of Government. As an incident of its sover-
eignty and independence, a state has a perfect right to
make such changes in its constitution, government, and
laws as it may deem expedient or desirable. These
changes may be so radical in character as to effect a
complete change in its form of government. The po-
sition of such a state in International Law is in no way
affected by such changes, so long as they are strictly
internal in character. The new government succeeds
to the powers and privileges, and becomes responsible
for the obligations, of the government which has been
3
34 OUTLINES OF INTERNATIONAL LAW.
displaced. None of these can be abrogated or in any
way impaired. This follows from the principle that a
state is a continuing body, capable of enjoying rights,
of exercising sovereign powers, of incurring obligations
and of performing duties. Of this body the govern-
ment is the life, or moving force. A change of gov-
ernment, therefore, is but a change in the character of
this moving force. It gives the state no new powers or
rights, it absolves it from none of its duties or obliga-
tions. These ever remain unchanged.
9. Acquisition of Sovereignty. Of the states now
acknowledged as sovereign, in the civilized world, some
were in existence when International Law began to as-
sume importance as a separate science. Others have
since been added to the family of states. A new state
may come into being in one of two ways.
(a.} By separation from an existing state or states ;
and this may be brought about : (1) By peaceful meth-
ods, with the consent of the parent state, or with the
mutual consent of the states from which the new state
derives its territory and population ; (2) By violent or
hostile means, as by revolution or conquest.
(5.) By the combination of two or more states into
a permanent union, the component states abandoning
their identity completely, or surrendering permanently
most of their sovereign powers.
10. A state may lose a part or the whole of its sov-
ereign character. It may lose its identity completely,
by absorption in another state ; by peaceful methods
of confederation or union, or by the hostile methods of
conquest or subjugation. Sovereign rights and obliga-
tions, however, can never be destroj^ed. If they cease
to be exercised by one state they pass with the popu-
STATES AND THEIR ESSENTIAL ATTRIBUTES. 35
lation and territory into the corporate existence of an-
other, which assumes them, and, while enjoying the
rights, must recognize and be bound by the obliga-
tions.
11. Territory. It has already been seen that a state
exercises its sovereign powers within a certain terri-
tory. From the definition of a sovereign state it is
seen that the only possible line of demarcation that
can exist between sovereign states is a territorial line.
Where the sovereignty of one state begins that of an-
other ends.
The territory of a state is that portion of the earth's
surface over which a state exercises sovereign jurisdic-
tion, and within which that jurisdiction is supreme.
The boundaries of a state may be natural, consisting
of mountains, rivers, or the coasts of oceans, seas, gulfs,
or bays ; or artificial, consisting of parallels of latitude
or longitude, or lines described in treaties by their di-
rection and length between terminal points. They are
usually established by accurate surveys, and marked in
position by permanent monuments.
Rivers as Boundaries. When a river forms the
boundary between two states the line of demarcation
follows the mid-channel. If the channel changes, there
is some difference of opinion as to whether the boun-
dary changes with it, or remains in the ancient bed.
In most cases that have arisen the rules of the Ro-
man Law have prevailed in the settlement of the dis-
puted question of boundary. Should the change be
important the question would probably be adjusted
by agreement among the interested states. Where
rivers separate and traverse the territory of a num-
ber of states the question of boundary is necessarily
36 OUTLINES OF INTERNATIONAL LAW.
affected by considerations of greater intricacy and
difficulty having to do with their improvement and
navigation. 1 In recent times the tendency has been to
remove all restrictions upon the navigation of such
rivers, and to throw them open to general commerce.
These changes have been effected by treaties, to which
the states interested in the navigation of particular
rivers have been parties. In accordance with their
stipulations uniform rates of toll have been established,
unnecessary and burdensome charges have been abol-
ished or modified, and the expenses of maintenance
and improvement have been equitably assessed upon
the riparian powers. To defray these expenses various
expedients have been resorted to. In some of the
earlier treaties the revenues derived from tolls were
appropriated to the purpose. Later treaties provide
for an apportionment of the expense of improvement
among the riparian powers, and for the removal of all
restrictions in the way of tolls and dues from the navi-
gation of the river. In this way most of the navigable
rivers of Europe, that are not entirely included within
the territory of a single state, have been thrown open
to general commercial use.
What Constitutes the Territory of a State. All bodies
of water, all inland seas, gulfs, lakes, and rivers lying
entirely within the external boundaries of a state, are
portions of its territory, and are subject to its jurisdic-
tion. All littoral islands belong to the state to which
they are adjacent. All gulfs and bays, river mouths
1 In this respect an important difference was mafle in the Roman
Law between rivers and the sea. The former were regarded as a
portion of the public property of the state; the navigation of the lat-
ter was held to be the common right of all. Phillimore, vol. i., p. 189.
STATES AND THEIR ESSENTIAL ATTRIBUTES. 37
and estuaries included, or almost included, by the land,
are also regarded as a part of the territory of a state.
If the headlands be remote, the rule of possession is
not yet fully determined, for the reason that no inter-
national understanding has as yet been reached as to
the distance between headlands which shall determine
ownership and jurisdiction in all cases. As claims are
advanced to jurisdiction over particular bodies of wa-
ter they are usually adjusted by the states locally in-
terested, and their decision, if just and equitable, is ac-
quiesced in by other nations. 1
Jurisdiction over Closed Seas. The question of ju-
risdiction over many such partly included bodies of
water, sometimes called closed seas, has already been
decided. The Chesapeake and Delaware bays are rec-
ognized as parts of the territory of the United States,
Hudson's Bay and the Irish Sea as British territory ;
the Caspian Sea belongs to Russia, Lake Michigan to
the United States. The Black Sea, before Russia ob-
tained a foothold upon it, formed part of the territo-
ries of the Ottoman Porte ; it is now subject to the
joint jurisdiction of Turkey and Russia. The Baltic is
acknowledged to have the character of a closed sea
(and to be subject to the control of the powers sur-
rounding it), certainly to the extent of guaranteeing it
against acts of belligerency, when the powers within
whose territory it lies are at peace.
Rights of Ownership and Jurisdiction in the Case of
Straits. The rights of possession and jurisdiction in
the case of narrow straits and passes depend upon the
ownership of the territory separated by them. The
1 Halleck, vol. i., p. 140.
38 OUTLINES OF INTERNATIONAL LAW.
right of navigating them depends upon the character
of the bodies of water which they connect. If the
connected seas are open to general commercial naviga-
tion, the right extends to, and includes, the use of the
strait as a necessary means of communication. This
is sometimes called the right of innocent passage. The
Strait of Gibraltar is free, because the Atlantic Ocean
and Mediterranean Sea are open to the commerce of
all nations. A similar rule applies to the Bosphorus,
the Sea of Marmora, and the Dardanelles, connecting
the Black and Mediterranean seas, subject to the re-
strictions upon the passage of war vessels which are
contained in the treaties of 1856 and 1871.
The Danish Sound Dues. The peculiar claim of
Denmark to jurisdiction over the strait connecting
the ISTorth and Baltic seas was long a fruitful source of
complaint to all commercial nations. These claims
were exercised in the form of a toll, or tax, called Sound
Dues, levied upon all shipping which passed the strait
in either direction. They were based, in part, upon
immemorial prescription, and in part upon the expense
incurred by Denmark in the maintenance of lights and
buoys in the narrow and dangerous passage.
The question of the sound dues was settled in 1857
by a treaty entered into between Denmark and the
great European powers. " The right of Denmark to
levy these dues was not distinctly recognized, but com-
pensation was made to her by the payment of a capital
sum, on the ground of indemnity for maintaining lights
and buoys, which Denmark stipulated to maintain, and
levy no further duties." l As the treaty of 1857 dealt
1 Phillimore, vol. i., p. 217.
STATES AND THEIR ESSENTIAL ATTRIBUTES. 39
with other questions, of strictly European concern, and
to which the United States was unwilling to become a
party, a separate treaty was entered into between that
power and Denmark by which, in consideration of the
payment of a lump sum, the shipping of the United
States was to be exempted from similar levies in the
future. 1
If the territory separated by the waters of a narrow
strait belongs to a single state, the right of jurisdiction
over the separating strait is conceded to belong to the
owner of the territory. The Strait of Messina, sepa-
rating the island of Sicily from the Italian mainland, be-
longs to Italy, the Bosphorus and Dardanelles to Tur-
key, the Great and Little Belt and the Sound to Den-
mark. If the territory separated by the waters of the
strait belongs to different states the strait belongs in
part to each power. The line of territorial demarca-
tion is determined as in the case of boundary rivers,
and the jurisdiction of the adjacent states is separated
in the same manner.
Ship Canals. Artificial ways of communication,
like ship canals, however important their construction
may prove to be in its effects upon commerce, can ac-
quire interest from the point of view of International
Law only when they have been made the subject of
treaty stipulation. No existing rules apply to them, or
can be made to apply, by any process of construction.
They are not arms of the sea, nor straits, nor riv-
ers. Nor are they natural channels of trade or com-
merce over which all nations have the right of inno-
cent passage. Their neutrality in war is the most se-
1 "Treaties and Conventions of the United States," p. 213.
40 OUTLINES OF INTERNATIONAL LAW.
rious question that can arise with respect to them, and
this can only be secured by a guarantee of the great
powers, or by a sufficient number of them to secure
the observance of such guarantee. The neutrality of
the proposed Nicaragua Canal is guaranteed by Great
Britain and the United States, 1 that of the Panama
Canal by the latter power only." The neutrality of the
Suez Canal may be made the subject of a similar guar-
antee; at present, however, its neutrality is not se-
cured a situation which may lead to serious compli-
cations in the future.
Jurisdiction over a Portion of Coast Sea. Although
the strict territorial jurisdiction of a state ends at the
low- water mark, where the high seas begin, its claim to
exercise jurisdiction over a strip of sea three miles in
width has long been generally recognized. Over this
belt of coast sea, called the Marine League, a state is
acknowledged to have complete jurisdiction as against
other states. Whether its courts can assume jurisdic-
tion over it or not, will depend upon its municipal
laws. This peculiar jurisdiction is acknowledged to
guarantee immunity from acts of belligerency between
ships of nations other than that to which the coast sea
belongs ; to enable a state to carry into effect its mari-
time laws and customs regulations ; to secure protec-
tion to the inhabitants of the coast especially to those
engaged in coast fisheries, and to provide for an ade-
quate system of coast defence. As one of the chief
reasons for recognizing jurisdiction over the three-mile
limit has to do with questions of sea-coast defence, it
1 "Treaties and Conventions of the United States," p. 378.
9 Ibid., p. 187.
STATES AND THEIR ESSENTIAL ATTRIBUTES. 4^
seems proper that the width of this zone should in-
crease, as the range of modern artillery increases. 1 A
ship entering or passing through this strip of coast sea,
in the prosecution of a voyage, is not regarded as having
entered the territory of the adjacent state ; nor is it
subject to the rules of navigation which are sanctioned
by that state, and enforced against its own shipping.
The municipal laws of many states also assume a
limited jurisdiction over a wider zone of coast sea in
defining offences against their revenue laws. This
right has never been generally recognized, however,
and is only assumed, or authorized," for fiscal and de-
fensive purposes.
Case of the Franconia. Considerable light has been
thrown upon the exact character and extent of the ju-
risdiction of a state over the sea included within the
three-mile limit by the case of the Franconia. 3 The
Franconia was a German steamer, commanded by
Keyn, a foreigner, which, in the prosecution of a for-
eign voyage, passed within three miles of the English
coast. While within the three-mile limit the Fran-
conia collided with an English vessel and sunk her,
causing the death of one of her passengers. Some
time later Captain Keyn came within English jurisdic-
tion, and was arrested and tried for manslaughter.
He was convicted of that offence in the Central
Criminal Court, but his case was carried up, on a
question of jurisdiction, to the Court of Appeals.
1 Ortolan, in his " Diplomatie de la Mer," liv. ii., chap. 8, and Hal-
leek, chap, iv., 13, advocate this view. For an opposite opinion,
see Boyd's Wheaton, p. 239.
2 Halleck, vol. i., pp. 137, 138.
8 Regina vs. Keyn, 2 Exch. Div., pp. 202-205.
42 OUTLINES OF INTERNATIONAL LAW.
It was there held by a majority of the judges that,
in so far as the court that had tried Keyn was con-
cerned, the crime had been committed upon a for-
eign ship, on the high seas, and in the prosecution
of a foreign voyage. The Central Criminal Court,
therefore had no jurisdiction in the case. The view of
the majority was, that in so far as other states were
concerned, England had jurisdiction, for all purposes,
over that portion of the high seas included within the
three-mile limit ; but, as the law of England stood at
that time, jurisdiction over crimes committed within
that limit had not been bestowed by Parliament upon
any of the courts of the kingdom. Their criminal ju-
risdiction ended at the low-water mark, and crimes
beyond that limit were therefore committed out of
their jurisdiction.'
The High Seas. This term is applied to the general
ocean surface of the globe. It begins at the low-water
mark, where, by legal presumption, the land is held to
end. Upon the high seas all nations have equal rights.
The privilege of sailing over them or of fishing in them
belongs equally to all. No state can include them with-
1 Soon after this decision was announced, Parliament, by the Ter-
ritorial Waters Jurisdiction Act (40 and 41 Vic., chap. 73) assumed
jurisdiction over the coast sea to the distance of a marine league,
and bestowed it upon the Courts of Admiralty. This was done
with a proviso that "no proceeding should be had in any case
under the act unless with the consent of one of Her Majesty's
secretaries of state, and on his certificate that the institution of
the proceedings is, in his opinion, necessary." This reservation
was doubtless intended to prevent a conflict between the execu-
tive and judicial departments of the government in the event of
a case arising under the act of such a nature as to involve con-
siderations of an international character.
STATES AND THEIR ESSENTIAL ATTRIBUTES. 43
in its territory, or extend its dominion over the whole
or any part of the high seas.
The doctrine of the absolute freedom of the high
seas is of relatively recent growth. In former times
claims were made to exclusive jurisdiction over large
portions of the sea, but none of them are now main-
tained.
Claims to Exclusive Dominion. In the early part
of the sixteenth century extravagant claims to domin-
ion were advanced by Spain and Portugal, based upon
their maritime discoveries. As these claims were of the
most conflicting character, a controversy arose, which
was submitted to Pope Alexander VI. for decision.
He decreed that all those parts of the world which
were not then in secure possession of any Christian
prince should be divided between Spain and Portugal.
A meridian line was established through a point one
hundred leagues west of the Azores, as a boundary be-
tween the possessions of the two powers ; all the ter-
ritory to the west of the line was decreed to Spain,
and all to the east of the same line to Portugal. Un-
der this authority, which seems to have had interna-
tional recognition, Portugal forbade all commerce with
the East Indies and the west coast of Africa ; Spain,
claiming the Pacific Ocean and the Caribbean Sea as
Spanish territory, forbade all commerce with Mexico,
the west coast of North and South America, and the
isknds of the Pacific.
England at one time claimed that its jurisdiction
over the narrow seas ended at the coasts of France
and the Netherlands. This claim was resisted, espe-
cially by the Dutch, and so successfully that it was
largely reduced in importance, and at the close of the
44 OUTLINES OF INTERNATIONAL LAW.
seventeenth, century finally abandoned. Russia, in
1822, laid claim to exclusive jurisdiction over that part
of the Pacific Ocean lying north of the fifty-first de-
gree of north latitude, on the ground that it possessed
the shores of that sea, on both continents, beyond that
limit, and so had the right to restrict commerce with
the coast inhabitants. England and the United States
entered vigorous protests against the right claimed by
Russia, as contrary to the principles of International
Law, and it Avas formally withdrawn in 1824.
12. Rights of River Navigation. The liberal meth-
ods now so generally applied to the solution of ques-
tions having to do with the treatment of navigable
rivers date from the Congress and Treaty of Vienna,
in 1815. On the few previous occasions in which such
questions had been made the subject of treaty stipula-
tion the right of joint or public navigation, if recog-
nized at all, had been hampered with needless and
burdensome restrictions, originating in the mutual
jealousy of the interested parties, and but little cal-
culated to favor the development of interstate com-
merce. The Treaty of Vienna, however, inaugurated
a marked change in this respect. The 16th annexe of
that instrument contains a body of fundamental prin-
ciples, in accordance with which detailed rules were to
be prepared, by the states locally interested, for the
regulation of navigation of six important European
rivers the Rhine, Main, Moselle, Neckar, Meuse, and
Scheldt. The 109th article declares that these streams
are thrown open to the commerce of all nations from
the points where they become navigable to the sea.
At different times between 1815 and 1856 arrange-
ments, conceived in the same liberal spirit, were en-
STATES AND THEIR ESSENTIAL ATTRIBUTES. 4.5
tered into with, reference to the Elbe, Vistula, Weser,
and Po ; and, in 1835, by a treaty between Spain and
Portugal, the navigation of the Douro was declared
common to the subjects of both powers.
Case of the Danube. As Turkey was not a party to
International Law at the time of the negotiation of the
Treaty of Vienna, the provisions of that instrument
were not extended to the Danube. The first attempt
to regulate the navigation of that river is found in the
Treaty of Bucharest, entered into between Turkey and
Russia in 1812. By the fourth article of that treaty it
was agreed that the boundary line between the two
states should follow the left bank of the Danube from
its junction with the Pruth to its mouth at Kilia, on
the Black Sea ; and the navigation of both rivers was
declared to be free to the subjects of the signatory
powers. The Danube enters the Black Sea through
three principal channels. The most northern of these,
which is known as the Kilian mouth, carries by far the
greater part of its waters to the sea, and is the one best
adapted to purposes of navigation. The central, or
Sulina channel, discharges but a small part of the vol-
ume of the stream. The southern, or St. George's
channel, carrying about one third of the volume of the
river, reaches the sea, through several mouths, at a
point about twenty English miles to the south of the
Sulina channel. By the Treaty of Adrianople, in 1815,
to which Turkey and Russia were the contracting par-
ties, the Sulina mouth, which had been left in the pos-
session of Turkey by the former treaty, was acquired
by Russia, that power binding itself to maintain its
channel at a sufficient depth to admit vessels at all
times. This stipulation does not seem to have been
46 OUTLINES OF INTERNATIONAL LAW.
rigidly observed by Russia, and its failure to maintain
a navigable channel was made the subject of remon
strance, at different times, by several European pow-
ers. ISTo change was made in the existing treaties,
however, and the question remained in this condition
until the close of the Crimean war.
By the Treaty of Paris, in 1856, to which instru-
ment Turkey was a signatory party, the Danube was
placed upon the same footing as the other great rivers
of Europe. A commission was created for the pur-
pose of erecting and maintaining such engineering
works at the mouth of the river as were, or might be-
come, necessary in the interest of navigation. The
commission began its labors in 1857. The Sulina mouth
was chosen as the one most susceptible of improvement,
and suitable works were undertaken for its betterment.
The funds for this purpose were supplied by Turkey
during the years between 1857 and 1860 ; from 1860
onward they were obtained by a tax levied upon all
vessels entering the river. The Treaty of March 13,
1871, extended the operations of the Danubian Com-
mission for a further period of twelve years ; and a
new and significant step was taken by an agreement
of the powers to a declaration guaranteeing the per-
manent neutrality of the works of improvement at the
mouth of the river.
The cases of the Mississippi and St. Lawrence rivers,
in the United States, gave rise to much controversial
discussion.
Case of the Mississippi. The Peace of Paris, in
1763, brought to a close the long series of wars for do-
minion between England and France, to which Spain
had become a party, as an ally of France, in 1761.
STATES AND THEIR ESSENTIAL ATTRIBUTES. 47
By the Treaty of Paris the Mississippi Biver had been
recognized as the boundary between the possessions of
England and France in America, from its source to its
junction with the Iberville, an eastern tributary, con-
necting it with the lake system of its lower basin.
From that point the boundary line followed the course
of the Iberville, through lakes Pontchartrain and Mau-
repas, to the Gulf of Mexico. The line of the Iber-
ville separated Florida and Louisiana, which were ced-
ed by the treaty, the former to England and the latter
to Spain, and the right of navigating the Mississippi
was secured to the subjects of Great Britain from its
source to the sea.
The treaty of peace between England and the United
States, which terminated the war of the Revolution,
was signed on Sept. 3, 1783. On the same day a
treaty was negotiated between England and Spain, by
which the provinces of East and "West Florida were
retroceded to Spain. France ceded to Spain a portion
of the province of Louisiana, thus giving to the latter
power undisputed control over the lower waters of the
river, from its mouth to its intersection by the thirty-
first parallel of north latitude, the course of the river
north of that point forming the boundary between the
United States and the French possessions in ]Sbrth
America. This state of affairs gave rise to a contro-
versy between Spain and the United States, as to the
right of citizens of the latter power to navigate that
part of the river lying wholly within Spanish terri-
tory.
On the part of the United States it was claimed that
the Treaty of 1763, between England and Spain, had
given to the subjects of Great Britain the right to nav-
48 OUTLINES OF INTERNATIONAL LAW.
igate the river from its source to the sea. This treaty
had, in fact, created a territorial servitude, which had
not been extinguished or repudiated by either of the
treaties of 1763 or 1783. It was fair to presume, there-
fore, that it still existed, and that the subsequent trans-
fer of territory on the east bank of the river had been
made subject to the right of navigation Avhich was
then enjoyed by the inhabitants of its upper waters.
A provision of the Roman Law was cited in behalf of
the United States, by which all navigable rivers were
held to be " so far public property that a free passage
over them was open to everybody, and the use of their
banks for the anchorage of vessels, lading and unlad-
ing cargo, and acts of the like kind, was regarded as
incapable of restriction by any right of private do-
main." 1 It was also claimed, on the part of the
United States, that the Mississippi River furnished the
only practicable outlet to the sea for all the products
of the upper valley. The claim, based upon this fact,
was held by the American negotiators to be of suffi-
cient importance to constitute a perfect right at Inter-
national Law. These claims were rejected by Spain,
whose right to control the navigation of the lower
courses of the river was based upon the fact of its
territorial jurisdiction. The position assumed by the
United States was not regarded as a sound one in ac-
cordance with the provisions of International Law as
then understood, and the controversy was brought to
an end by the Treaty of Oct. 20, 1795, between the
United States and Spain. By the terms of that treaty
the navigation of the Mississippi was to be free to both
1 Phillimore, vol. i., p. 189.
STATES AND THEIR ESSENTIAL ATTRIBUTES. 49
parties throughout its entire extent. The Americans
were to enjoy a right of deposit at Kew Orleans for
three years, at the end of which period either that
privilege was to be continued, or an equivalent estab-
lishment was to be assigned them at some other con-
venient point on the banks of the Lower Mississippi. '
The question of navigating this important stream w
finally settled by the purchase of Louisiana, in 1803,
and of Florida in 1819, which placed the river for its
i.nihv !;-ngth within the territorial jurisdiction of the
ITnited {States.
Case of the St. Lawrence. The case of the St. Law-
rence presents many considerations similar in charac-
ter to those discussed in the case of the Mississippi.
Its navigation was a matter of great importance to
the United States for the reason that it furnished, at
that time, the only outlet to the sea for commerce orig-
inating in the great lake system of JS^orth America.
These lakes, with the exception of Lake Michigan,
which lies wholly within the territory of the United
States, lie upon, and form a part of, the boundary be-
tween the United States and the British possessions in
Xorth America. From the head of Lake Superior to
the source of the St. Lawrence in Lake Ontario, and
along the course of that river to its intersection by the
northern boundary of the United States, the right of
navigation was determined, beyond question, by the
universally accepted rules of International Law, and be-
longed jointly to the two powers. The lower course
of the river, from its intersection by the forty-fifth par-
allel of north latitude to its mouth in the Gulf of St.
1 Hildreth, "History of the United States," vol. iv., p. 569.
4
50 OUTLINES OF INTERNATIONAL LAW.
Lawrence, lay entirely within the British territory.
The question between the two governments, therefore,
had exclusively to do with the right of navigation of
the British, or lower, section of the river.
On the part of the United States it was contended,
as in the case of the Mississippi, that, as the lower
course of the river formed the only outlet for com-
merce arising in a large portion of the territory of the
United States which lay upon the upper lakes, its nav-
igation became a perfect right at International Law,
and could be claimed, as a matter of necessity, by the
state whose territory lay upon its upper waters. The
right of navigating the Mississippi, stipulated for by
England in a precisely similar case, was cited by the
United States government in support of its view, as
was the action of the Congress of Vienna, to which
England had been a party, in throwing open a num-
ber of European rivers to general navigation in cases
similar to those of the St. Lawrence and Mississippi.
It was also contended, in behalf of the United States,
that, on account of the character and importance of
the bodies of water connected by it, the St. Law-
rence should be regarded as a strait, rather than as a
river, and that the question of its navigation should be
determined, as in the case of straits, rather by the right
to navigate the bodies of w r ater connected by it than
by the ownership of the banks along its lower course.
On the part of Great Britain the validity of the first
of the positions assumed by the United States was de-
nied, as not warranted by International Law. The con-
tention was also made that, wherever such concessions
had been granted, they had been based upon treaty
stipulations. The liberal arrangements in regard to
STATES AND THEIR ESSENTIAL ATTRIBUTES. 51
the joint or general right of river navigation made by
the Congress of Vienna, and recognized in subsequent
treaties, were based upon the conventional law of na-
tions, and could be withdrawn or modified at any time.
To the second claim, that the river should be regarded
as a strait, it was replied that the application of such a
rule must be general and international, and not local
and particular. If it applied to the case of the St.
Lawrence, it applied with equal force to the Hudson
and Mississippi, and to the artificial channels in !New
York and Ohio which formed a part of the line of
water communication between the great lakes and the
sea. Unless, therefore, the United States was pre-
pared to open these artificial channels to general navi-
gation, the British government must decline to so re-
gard that portion of the St. Lawrence which lay -en-
tirely within its territorial jurisdiction. The discussion,
though ably conducted on both sides, led to no results
of immediate or practical importance. The question
of navigation was settled by the Reciprocity Treaty of
1854 ; by which, in consideration of certain concessions
to British subjects in the matter of navigating Lake
Michigan, the right of navigation of the St. Lawrence
and the Canadian canals, forming a part of the sys-
tem of communication between the great lakes and the
sea, was conceded to citizens of the United States. 1
In this connection it is well to observe that the con-
1 Many of the navigable rivers of South America have been thrown
open to general navigation (Phillimore, vol. L, p. 209; Lawrence's
Wheaton, pp. 362-365). For a full discussion of the controversy be-
tween England and the United States on the subject of the St. Law-
rence, see Phillimore, vol. i., pp. 204-209; Boyd's Wheaton, pp.266-
270; Lawrence's Wheaton, pp. 356-362; Halleck, vol. i., pp. 150-152.
52 OUTLINES OF INTERNATIONAL LAW.
cessions thus far obtained in the matter of throwing
open rivers to general navigation, however liberal they
may have been, are all of them based upon treaty stip-
ulations. In none of these treaties is the question treat-
ed as one of amending or modifying the existing rules
of International Law upon the subject of river naviga-
tion. Such boundary rivers, therefore, as have not
thus far been made the subject of treaty stipulation,
are subject, in all questions affecting their ownership
and navigation, to the rules of International Law as they
existed in 1815. No claim can be advanced to their
navigation based upon the treaties above referred to,
as none of them have changed or amended the existing
rules of International Law. 1
SERVITUDES.
13. Origin and Application of the Term. The term
servitude is borrowed from the Roman Law, and is ap-
plied in the international relations of states to express
an obligation upon the part of one state to permit a
thing to be done or a right to be enjoyed by another
state within or upon its territory. The thing done, or
the right enjoyed, however, must not be sufficient in
amount or importance to constitute a restriction upon
the sovereignty or independence of the servient or sub-
ordinate state. 2 The state enjoying the benefit or priv-
1 "La Liberte de la Navigation Fluviale." E. Englehardt, "Re-
vue de Droit International," tome xi. (1872), p. 363.
2 Under the name of easements the principle of servitudes is rec-
ognized by the common law, with this difference, however, that
whereas a servitude could have been imposed upon an individual
or his property by the sovereign authority of the state, an easement
must, according to the common law, originate in an agreement
between the interested parties.
STATES AND THEIR ESSENTIAL ATTRIBUTES. 53
ilege of the servitude is called the dominant state. The
state lying under the obligation involved is called the
servient state. The existence of a servitude is not in-
consistent with entire sovereignty and independence
on the part of the servient state. The following ex-
amples are illustrations of servitudes: Suppose two
states, A and B, to be separated by a river ; A may lie
under a servitude to B not to construct works of im-
provement upon the boundary river which shall injure
the opposite bank. Suppose two states, C and D, to be
situated, one above the other, upon the course of a navi-
gable river, the mouth and lower waters being situated
in the territory of C ; C may lie under a servitude to
D of allowing its citizens the privilege of navigating
the river to the sea ; D may Me under a servitude to
C not to use the banks of the river within the terri-
tory of C for the purpose of loading and unloading
cargoes.
How Created and Terminated. Servitudes may ex-
ist by immemorial prescription, such existence being
tacitly or expressly recognized by other states. Such,
in great part, was the case of the Danish Sound Dues.
They may also be created by treaty, and may be
amended, increased, or modified in the same manner.
They may be extinguished by treaty, by non-user, and
in some cases by forcible denial of the obligation.
They must consist in an obligation to allow a thing to
be done, or a right to be exercised, or in refraining
from doing a thing ; they can never consist in an obli-
gation to do a thing. 1 They are further classified into
positive and negative. Positive servitudes consist in
1 Phillimore, vol. i., p. 236; Morey, "Outlines of Roman Law,"
pp. 288-292.
54 OUTLINES OF INTERNATIONAL LAW.
allowing a thing to be done, or a right exercised upon
the territory of the servient state. Negative servitudes
consist in refraining from the exercise of rights by a
servient state.
Examples of Servitudes, The following examples of
servitudes created by treaty are cited by Phillimore : 1
(1.) In the Treaty of Utrecht, of 1713, between Eng-
land and France, it was agreed on the part of France
that the Stuart pretenders should not be permitted to
reside in French territory.
(2.) In the Treaty of Utrecht, between Spain and
England, the possession of Gibraltar by the latter
power was confirmed by Spain on condition that Moors
and Jews should not be permitted to reside there.
(3.) The Treaty of Paris, of 1814, provided that Ant-
werp was to be an exclusively commercial port.
(4.) By the Treaty of 1831 certain Belgian fortresses
were to be demolished by Dec. 1, 1833.
THE RIGHT OF JURISDICTION.
14. Right of Territorial Jurisdiction. From the def-
inition of a sovereign state it follows that " the jurisdic-
tion of a nation within its own territory is necessarily
exclusive and absolute. It is susceptible of no limita-
tion not imposed by itself. Any restriction upon it
deriving validity from any external source would im-
ply a diminution of its sovereignty to the extent of the
restriction, and an investment of that sovereignty to
the same extent in that power which could impose
such restriction. 2
Classification of Jurisdictional Powers. This juris-
1 Phillimore, vol. i., p. 236.
3 Case of The Exchange, 7 Cranch, 116.
STATES AND THEIR ESSENTIAL ATTRIBUTES. 55
diction extends to all subjects and over all persons
within its territorial limits, it matters not whether
those persons be native born, or naturalized citizens, or
aliens. It involves the right of maintaining any form
of government, of administering that government in
accordance with its own views and methods, and of
changing it, whenever such a change seems necessary
or desirable. It implies the right of classifying the
sovereign powers, and of distributing them among sev-
eral departments, or of concentrating all of them in
the hands of a single ruler or sovereign. It involves
an immunity from interference, from external sources,
in the enjoyment and exercise of its sovereign powers,
and a corresponding obligation to abstain from similar
interference in the internal affairs of other states.
Right of Jurisdiction^ in whom Vested. The right
of jurisdiction is inherent in the artificial body politic
which we call the state. It is exercised, like other sov-
ereign powers, through the government of the state,
and the various rights of jurisdiction are usually clas-
sified and distributed among the different departments
of government. The jurisdictional powers of a state
are usually divided into :
(a.) The Power to Make, Alter, and Repeal Laws.
This is called the legislative department. In states
which recognize the people as the ultimate source of
sovereignty this department stands first in power and
importance. It expresses, more directly than any oth-
er, the sovereign will upon any question coming within
its jurisdiction. It determines the policy of the state
upon all matters internal and external, and can change
that policy at will. At the other extreme He states in
which the sovereign authority is held to reside in the
56 OUTLINES OF INTERNATIONAL LAW.
person of a single ruler or sovereign. Here the legis-
lative department does not exist, and the powers usu-
ally exercised by it are vested in the hands of the
sovereign or executive.
(&.) The Power to Enforce and Execute the Laws.
This is called the executive department. In states which
recognize the principle of popular sovereignty the ex-
ecutive himself represents the people in the exercise of
that class of governmental powers which has to do
with carrying the laws into effect. He is responsible
to them for the manner in which he performs his duty,
and either directly or through his subordinates repre-
sents them in all intercourse with foreign powers. In
the exercise of the powers which are peculiar to his
office he is independent of the other departments of the
government. He also represents in the highest degree
the dignity and majesty of the state ; an insult to him
is an insult to the state, and attacks directed against
his person or authority are usually given the character
of treason.
(c.) The Power to Apply the Laws in the Decision of
Cases Arising under them. This is called ihe judicial
power. The jurisdiction of the courts of a state is fur-
ther classified into civil and criminal. The former
extends to the decision of all suits or controversies
arising between individuals out of contracts, claims,
and services, as well as from torts and injuries. The
latter includes the power to try and punish all offences
against the state or its sovereign representative, or
against society or the individuals who compose it.
Exclusive Jurisdiction, where Exercised. This right
of jurisdiction is exclusive in all cases arising within
the territorial limits of a state, or upon its public or
STATES AND THEIR ESSENTIAL ATTRIBUTES. 57
private vessels on the high seas. It is of the most
comprehensive character, and, within the territorial
limits as above described, no offence can be committed,
no act be done, no occasion arise for governmental in
terference of any kind that will not fall within the ju-
risdiction of some branch or department of the gov-
ernment of the state, or over which that jurisdiction
will not be final and exclusive.
Extra-territorial Jurisdiction of a State. Under cer-
tain circumstances a state may exercise jurisdiction
over its subjects beyond its strict territorial limits.
This extension of jurisdiction is sanctioned in the fol-
lowing cases :
(.) Over the officers and crews of its ships of war,
wherever they may be. They are a part of the public
armed force of the state, and are governed by a special
code of laws and regulations.
(&.) Over its merchant vessels on the high seas. The
crews of these vessels are subject to the admiralty juris-
diction of the state whose register they carry. This
extends to all cases of a civil or criminal character oc-
curring on the high seas or beyond the jurisdiction of
any civilized state. Merchant vessels on the high seas
are, for purposes of jurisdiction, acknowledged to be a
part of the territory of the state to which they belong,
and under whose flag they sail. From this principle
it follows that, in time of peace, these ships are exempt
from visitation and search by foreign vessels of war, 1
except in strict accordance with treaty stipulations.
They are subject to such visitation and examination
at sea by public armed vessels of their own nation
1 See case of the Laconia, ' ' United States Foreign Relations," 1879,
pp. 415, 432.
58 OUTLINES OF INTERNATIONAL LAW.
as is authorized by the municipal law of the state
to which they belong. The right of search in time
of war is a belligerent right, and will be discussed
hereafter.
So soon, however, as a merchant ship enters a for-
eign port, it is subject in every respect to the municipal
laws, and especially to the criminal jurisdiction of the
country in which the port is situated. " For any unlaw-
ful acts done by her while thus lying in the port of a
foreign state, and for all contracts entered into while
there, by her master or owners, she is made answerable
to the laws of the place. JSTor, if her master or crew,
while on board in such port, break the peace of the
community by the commission of crimes, can exemp-
tion from the local laws be claimed for them. But the
comity and practice of nations have established the
rule of International Law that such vessel, so situated,
is, for the general purpose of governing and regulating
the rights, duties, and obligations of those on board, to
be considered as a part of the territory of the nation
to which she belongs. It therefore follows, that, with
respect to facts happening on board which do not con-
cern the tranquillity of the port, or persons foreign to
the crew, or acts committed on board while such ves-
sel was on the high seas, are not amenable to the ter-
ritorial justice. All such matters are justiciable only
by the courts of the country to w^hich the vessel be-
longs." ' The practice of France in this respect dif-
fers from that of most modern nations. She declines
to allow her courts to take jurisdiction over crimes
committed by one member of the crew upon an-
2 Halleck, vol. i., pp. 190, 191; Masse, "Droit Commercial,"
tome ii., 31-44.
STATES AND THEIR ESSENTIAL ATTRIBUTES. 59
other, on board a foreign merchant vessel in her har-
bors. If a French subject be the injured party, how-
ever, the French courts will take jurisdiction of the
case.
(c.) Over its armies in the field, when beyond the
limits of its territorial jurisdiction. The officers and
enlisted men of the army, like the corresponding per-
sons in the navy, are a part of the public armed force,
and are governed at home and abroad by a special code
of laws and regulations.
(d.) Over crimes committed by its subjects in territo-
ry occupied by savages, or unoccupied, and not claimed
by any civilized power. If this jurisdiction were not
assumed such crimes as kidnapping, engaging in the
slave trade, etc., would go unpunished. For this rea-
son most states, in their municipal laws, provide for
their trial and punishment.
(<?.) Over the crime of piracy, by whomsoever com-
mitted, on the high seas, or on land without the juris-
diction of any civilized state.
THE PRINCIPLE OF EXTERRITORIALITY.
15. Definition and Origin. ~bn. a limited number of
cases states permit the jurisdiction of other states to be
exercised within their territory. This is called the prin-
ciple of exterritoriality. It is a fiction of law, invented
to explain certain immunities and exemptions from the
local law, which are recognized by all nations in their
dealings with each other. It does not explain all of
the circumstances that may arise in any of the cases to
which it is applied, but it accounts for many, or most
of them, more satisfactorily than does any other meth-
od of treatment that has been proposed.
60 OUTLINES OF INTERNATIONAL LAW.
From the definition of a sovereign state it is seen
that such an exercise of jurisdiction can only be pos-
sible with the tacit or express consent of the state
within whose territory it is exercised. It is therefore
based upon comity, and is held to apply in the follow-
ing cases :
(1.) To Ships of War in Foreign Ports. It has been
shown that the war vessels of a state, while on the
high seas, are, like those of its merchant marine, sub-
ject only to the law of the state under whose flag they
sail. By the general consent of nations this immunity
from local jurisdiction is extended, in the case of pub-
lic armed vessels, to cover the period of their sojourn
in the ports or other territorial waters of a foreign
state. There has been considerable discussion as to
whether the exemption accorded to ships of war can
be claimed, as a matter of strict right, or is based upon
the comity of nations. The latter view is now gen-
erally accepted. The Board of Arbitration in the Ge-
neva case ruled that " the privilege of exterritoriality
accorded to vessels of war has been admitted into the
Law of Nations ; not as an absolute right, but solely
as a proceeding founded on the principles of courtesy
and mutual deference between different nations." ' In
this view Phillimore and Story agree. 2
" If for reasons of state the ports of a nation gen-
erally, or any particular ports, be closed against ves-
sels of war generally, or the vessels of war of any
particular nation, notice is usually given of such de-
termination. If there is no such prohibition the
ports of a friendly nation are considered as open to
1 "Decision Geneva Board," p. 184.
2 The "Santissima Trinidad," 7 Wheaton, 283.
STATES AND THEIR ESSENTIAL ATTRIBUTES. 61
the public ships of war of all powers with whom it is
at peace." '
War vessels are subject to the jurisdiction of the port
in matters of quarantine, and are required to obey the
local revenue laws and the port regulations on the sub-
ject of anchorage, lights, and harbor police. 2 They
may be compelled, by force if need be, to observe such
regulations as may be deemed necessary, by the state
in whose ports they may be, for the maintenance of
its neutrality.
The privilege of exterritoriality does not apply to
members of the ship's company on shore. The local
laws apply to them, under such circumstances, as fully
and strictly as to any citizen of the state, or to any
foreign sojourner. Crimes committed by officers of a
public armed vessel or by members of its crew on
shore, therefore, may not only be judicially noticed by
the local tribunals, but may be made the subject of
complaint in the diplomatic way."
In this connection a question arises as to the duty of
the captain of a public armed vessel in the matter of
surrendering a criminal who has taken refuge on board
his ship in a foreign port. TJie present rule is that,
upon proper application by the local authority, it shall
be the duty of the commanding officer to surrender
such criminal. The privilege of exterritoriality rests
upon comity, and a nation may, for good reason, de-
1 Cranch's Reports, vol. vii., p. 141.
9 Halleck, vol. i., pp. 188, 189.
3 Bluntschli, "LeDroit International Codifie, "liv. iv., 321; Pin-
heiro Ferreira, " Cours de Droit Public," tit. ii. art. xviii., 50; Haute-
femile, "Droit des Nations Neutres," tome ii., art. vi. ; Halleck,
vol. i., p. 190.
62 OUTLINES OF INTERNATIONAL LAW.
cline to extend it to foreign vessels of war visiting its
harbors. If it may decline to extend it at all, it may
grant it subject to restrictions imposed by itself, such re-
strictions being reasonable in character and generally
known. " The essence of the privilege of ships of war in
foreign territorial waters is, that the commanding offi-
cer is permitted to exercise freely, and without inter-
ference, on board his ship the authority which, by the
law of his own country, he has over the ship's company.
This permission is tacitly given by the very fact that the
ship of war is allowed to enter foreign territorial wa-
ters. It implies an undertaking on the part of the
local sovereign to abstain from all interference between
the commanding officer and the ship's company brought
by him into the territorial waters ; for, if there were no
such understanding, the privilege might be rendered
illusory by the institution of inquiries, on the result of
which the commanding officer's authority over the
ship's company would depend." ' Such being the ori-
gin and extent of the privilege, " no state can be sup-
posed, by permitting a foreign ship of war to enter its
harbors, to have consented that its own subjects should
be able to free themselves from its own laws by going
on board the ship. It may, perhaps, be inferred from
such a permission, that the state which gave it meant,
in certain cases, to rely for the due observance of its
laws upon the assistance and good offices of the officers
of the ship ; but that is quite a different matter from
giving up the laws themselves." * In the correspond-
ing case of a criminal seeking asylum in the hotel of
an ambassador, his surrender may be demanded, and
1 Stephens, "History of the Criminal Law of England," vol. ii.,
p. 49. a Ibid. p. 48.
STATES AND THEIR ESSENTIAL ATTRIBUTES. 53
if the demand be not complied with he may be ex-
tracted by force. It has never been claimed that the
principle of exterritoriality applied with more or
greater force to a ship of war than to the hotel of an
ambassador. Indeed, the contrary is the case. 1 Should
the surrender of a criminal be demanded and refused,
the weight of opinion is that force may not be used to
gain possession of the offender. Resort must be had
to diplomatic means, to reprisals, or, in the last resort,
to war. 2
(2.) To the Passage of Troops through the Territory
of a Foreign State. This practice was much more fre-
quent in former times than it is at present. The in-
creasing strictness with which the rules of neutrality
are now observed has rendered the practice obsolete in
war, and the generally cherished desire to avoid inter-
national complications, by removing one of the most
fruitful causes of international misunderstanding, has
contributed powerfully to diminish its frequency in
time of peace. Permission for such movements is now
rarely accorded, save in very exceptional cases as to
an ally in war, or as an act of courtesy or humanity
in time of peace. In the few instances in which it is
permitted, the conditions of the movement are ar-
ranged, with great minuteness of detail, in a prelimi-
nary treaty.
1 Kent holds that the writ of habeas corpus may be served on board
a foreign vessel of war in the territorial waters of the United States.
Abdy's Kent, p. 396. The Attorney-general of the United States
held, in 1794, that civil and criminal processes could be served on
board such ships. ' ' Opinions Attorneys-general of the United States, "
vol. i., pp. 25, 27, 55, 56.
2 Stephens, "History of the Criminal Law of England," vol. ii.,
pp. 48, 54-56.
64: OUTLINES OF INTERNATIONAL LAW.
The practice is disfavored, but not absolutely forbid-
den, by international law. The outbreak of war, there-
fore, or the existence of an emergency, may make it
necessary to resort to it at any time. Should such
a case occur, the principle of exterritoriality would
apply to a movement of troops through foreign terri-
tory in the same way, and to the same extent, that it
is applied in the admission of a ship-of-war to a foreign
port. Its application would be attended with greater
difficulty, however, arising in part out of the character
of the act itself, and in part from the occurrence of cir-
cumstances, during the passage, which could not be pro-
vided for in advance. This would be especially true if
the movement were effected by marching, and not by
railway or steamer.
The moving force is governed, in transit, by the mil-
itary laws and army regulations of its own government,
with such additional restrictions as may be stipulated
to be observed in the treaty or agreement authorizing
the passage. Offences committed along the line of
march are tried by courts-martial, or are punished
summarily, when the offending and injured persons
belong to the moving force. If the parties injured be
citizens of the district traversed, the trial and punish-
ment of the offenders would be arranged for by treaty.
As such offences have a peculiarly aggravated charac-
ter, they should be more severely dealt with than if
committed at home. Questions of purchasing supplies
in the country passed through are strictly regulated
by treaty, as are similar questions arising as to the
quartering of troops, the passage of ferries and bridges,
and the use of wells or other sources of water supply.
When such movements are made, as it is impossible to
STATES AND THEIR ESSENTIAL ATTRIBUTES. (55
%
foresee and provide for all cases of injury and damage
that may occur, it is proper to provide, in the prelim-
inary treaty, for the indemnification of injured par-
ties, by permitting their claims to be submitted in the
diplomatic way, or by arranging for the organization of
a commission having power to investigate such claims,
and to determine the amount of damage sustained,
with a view to its being liquidated by the government
through whose agents it was inflicted.
(3.) To the Person of a Sovereign, his Retinue and
Attendants, while Passing through or Sojourning in
Foreign Territory. There are numerous instances of
such royal visits, and the practice of making them
bids fair to continue in existence, if, indeed, it does
not become more frequent than formerly. At the
present time such visits are not attended by the polit-
ical significance which formerly attached to them.
They are either made with great formality as when
a visit of ceremony is made or returned, or a confer-
ence of sovereigns is arranged, with a view to an ex-
change of opinions upon some matter of serious inter-
national concern or they may have an entirely private
and informal character, the visiting sovereign waiving
many of the honors and privileges to which he is enti-
tled in his sovereign character.
If the consent of the sovereign whose territory is vis-
ited has been formally given, such consent is held to
confer the privilege of exterritoriality. The visiting
sovereign is permitted to exercise his functions as if he
were still in his own dominions ; and he may do any
act which he is authorized to do by the laws of his
own state, and which is not so repugnant to the law
of the territory in which he is as to be forbidden to
5
66 OUTLINES OF INTERNATIONAL LAW.
be exercised by its sovereign. Such acts, however, are
presumed to have effect only within his own territory,
and upon his own subjects. His control over his
suite is not impaired, and their responsibility to him
is in no way affected, by the fact of absence. What-
ever articles of personal or movable property are car-
ried with him enter the foreign state without inspec-
tion or payment of duty, and are exempt from taxation
and imposts of all kinds during his sojourn there. In
all other respects the privilege of exterritoriality ap-
plies to a sovereign, and to his retinue and train, in
precisely the same manner, and to the same extent,
that it does to an ambassador and his retinue.
Should a person of sovereign rank enter the territory
of a foreign state without the permission of its sov-
ereign or executive authority, he is conceded most of
the immunities that are extended to him when such
consent has been obtained. The circumstances under
which such visits are made may be, and frequently are,
so peculiar and exceptional as to make it impossible
to lay down any definite rules on the subject. If the
presence of such a person is dangerous to the safety
of a state, or involves its neutral obligations in any
way, or is offensive to, or threatens its relations with,
friendly powers, asylum may be refused, and the visit-
ing sovereign may be forbidden to exercise any of his
functions, or to maintain a correspondence with persons
in his own state, and he may even be compelled to
quit the territory. If no such consequences ensue, or
are likely to ensue, tl\e visit differs in no important re-
spect, in so far as the application of the principle of
exterritoriality is concerned, from one made with the
consent of the sovereign of the visited territory.
STATES AND THEIR ESSENTIAL ATTRIBUTES. 7
(4.) To Ambassadors and Public Ministers. To the
efficient and successful performance of an ambassador's
duties, it is necessary that his person should be held
inviolate, and that he should be entirely free from re-
sponsibility to the government to which he is accred-
ited. Without such freedom of movement and action
it would be impossible for him to adequately represent
his own government, or effectively interfere in behalf
of his fellow-subjects. This principle of inviolability
and immunity has been recognized by all Christian
states since permanent legations were first established
in Europe, in the fourteenth century. It is now so
universally conceded as not to admit of question or
discussion.
" "Whatever may be the principle upon which this
immunity is established, whether we consider ' the am-
bassador' as in the place of the sovereign he repre-
sents, or, by a political fiction, suppose him to be extra-
territorial, and therefore, in point of law, not within
the jurisdiction of the sovereign at whose court he
resides, still the immunity itself is granted by the gov-
erning power of the nation to which the minister is
deputed. This fiction of exterritoriality could not be
erected and supported against the will of the sovereign
of the territory. He is supposed to assent to it." '
The subject will be more fully discussed in the chap-
ter devoted to the privileges and immunities of am-
bassadors.
(5.) To Consuls and to Foreign Residents in Certain
Eastern Countries. From the beginning of intercourse
with the Mohammedan nations inhabiting the south-
1 Case of the Exchange, 7 Cranch, pp. 116, 138.
68 OUTLINES OF INTERNATIONAL LAW.
ern and eastern coasts of the Mediterranean Sea it has
been found necessary, by reason of the radical differ-
ence between their legal and religious systems and
those prevailing among the Christian nations of Eu-
rope, to withdraw from the operation of the local laws
such subjects of the latter powers as were obliged, on
account of their business or official character, to reside
in the Levantine ports and commercial cities. These
exemptions have been obtained in every case by treaty
stipulations or concessions, and they are enlarged and
modified, from time to time, in the same manner.
When intercourse became general with China and Ja-
pan similar concessions were obtained in behalf of the
subjects of the principal commercial nations of Eu-
rope and America, The subject will be treated at
length under the head of Consular Jurisdiction.
References. The theory of state sovereignty and jurisdiction is
derived directly from the Roman Law. Upon the application of
that theory to the mutual relations of states is based the claim of
Grotius to the honor of being the founder of the modern science.
The first edition of his work, " De Jure Belli et Pacis," was pub-
lished in Paris in 1625. It has been translated into almost all of
the modern languages of Europe. The last French edition ap-
peared in 1864. An English translation appeared in 1738. The
usual English edition, however, is that of Dr. Whewell, which was
published in 1853. The classification of the powers of govern-
ment is of quite recent origin, and can be studied to advantage in
the constitutions of modern states. See Cooley's " Constitutional
Law," Cooley's edition of " Story's Commentaries," and Holrnes's
edition of Kent tor the United States. For England, see Stubbs's
" Constitutional History," Bagehot's " English Constitution," and
the works of Hallam, Amos, and Maine. The rules regarding ter-
ritory and territorial jurisdiction are largely adopted from the
Civil Law. The principle of servitudes is of similar origin, al-
though in the doctrine of easements a modified form of the prin-
STATES AND THEIR ESSENTIAL ATTRIBUTES. $9
ciple is known to the Common Law. For an account of the Law
of Servitudes, see Morey, " Outlines of the Roman Law," pp. 289-
292 ; Phillimore, vol. i., pp. 330-332. For the subject of the High
Seas and the freedom of the sea, see Grotius, " Mare Liberum,"
written in reply to Selden's " Mare Clausum." See, also, Azuni,
vol. i., chaps. i.-iii. ; Phillimore, vol. i., pp. 209-224 ; Vattel, chap,
xxiii., 279-294 ; Heffter, pp. 146-148 ; Martens, G. F. De, 43 ;
and 18 of Wheaton's "History of the Law of Nations." The
fiction of exterritoriality is fully discussed in Halleck, chap, vii.,
24, 25; Boyd's Wheaton, pp. 139, 140; Heffter, pp. 86-90;
Creasy, pp. 176-190, and p. 686.
CHAPTEK III.
PERFECT AND IMPERFECT RIGHTS.
1. Perfect Rights. The essential attributes of a
state have been defined to be those of sovereignty,
independence, and equality. Any state right fairly
deducible from any one of these, or from all of them,
is a perfect right. The denial of a perfect right, there-
fore, constitutes an invasion of the sovereignty of the
offended state, justifying, if not atoned for, forcible
measures of redress. If the sovereign rights of a state
can be denied, trespassed upon, or invaded in one re-
spect, they can in all respects, and its sovereignty
and independence would be abridged, and finally lost,
by such repeated invasions or denials. For these rea-
sons the rule has received universal sanction that the
perfect rights of a state can be drawn in question or
denied only at the risk of war.
The perfect rights of a state are susceptible of clas-
sification under one of two heads.
First. The right of a state to a free and independent
existence within its territorial limits.
Second. The right to be respected as a sovereign
state in its intercourse with other states. 1
Some of the more essential of the perfect rights and
duties of states are :
(a.) The Right of Self-preservation. This is called
1 Heffter, pp. 47, 48.
PERFECT AND IMPERFECT RIGHTS. ft
into being whenever the corporate existence of a state
is menaced. It corresponds to the individual right of
self-defence. The danger may be internal, as in the
case of insurrection or rebellion, or external, as in the
case of invasion, either real or threatened. " The right
of self-preservation is the first law of nations, as it is
of individuals. A society which is not in condition to
repel aggression from without is wanting in its prin-
cipal duty to the members of which it is composed, and
to the chief end of its institution. All means which do
not affect the independence of other nations are lawful
to this end. No nation has a right to prescribe to an-
other what these means shall be, or to require any ac-
count of her conduct in this respect." 1
In the exercise of this right a state organizes its land
and naval forces in time of peace or war, maintains
them at such strength as it may deem adequate to the
national defence, and protects its coasts, harbors, and
land frontiers by such works of defence as it may deem
necessary to secure them from attack. The military
establishment that is maintained by any particular
state is determined by its institutions, its military pol-
icy, the character of its foreign relations, and, to some
extent, by its financial resources. Any limitation upon
such establishments must be strictly internal in char-
acter. External dictation in such matters is ordina-
rily not permissible. " Armaments suddenly increased
to an extraordinary amount," however, " are calculated
to alarm other nations, whose liberty they appear to
menace. It has been usual, therefore, to require and
receive amicable explanations of such warlike prepara-
1 Phillimore, vol. i., p. 252.
72 OUTLINES OF INTERNATIONAL LAW.
tions ; the answer will, of course, much, depend upon
the tone and spirit of the requisition." '
The assertion of the right of self-preservation on the
part of a state involves the duty of recognizing the same
right in other states. If a state resents invasion of its
sovereign rights, it is bound to respect the territory and
rights of other states. It cannot invade them itself, nor
can it permit its subjects, or others within its jurisdic-
tion, to use its territory as a base of hostile operations
against a state with which it is at peace. Its power and
responsibility are equal, and it cannot plead its weak-
ness, or the insufficiency of its municipal laws, when-
ever such hostile attempts originate within its juris-
diction.
(&.) The Duty of a State to Protect its Citizens or
Subjects. It is a fundamental maxim of government
that every citizen owes a duty of defence to his coun-
try in time of public danger. In return, the citizen is
entitled to the protection of his government, in person
or property, against insult and aggression of every sort.
This protection surrounds him at home, and follows
him wherever he may travel or reside.
Such injuries may be committed : 1. When a state,
through its officers or duly authorized agents, acts
directly against the subject of a foreign state, in viola-
tion of international law. 2. When a state acts indi-
rectly, by failing to secure adequate remedies to stran-
gers who have been injured by individuals within its
jurisdiction. 2 In either case it is the right and duty
of the offended state to protect its subjects in foreign
parts by every means authorized by International Law.
1 Phillimore, vol. i., p. 253. a Heffter, p. 120.
PERFECT AND IMPERFECT RIGHTS. f3
It does not follow that every case of aggression of this
kind must of necessity result in war. If an individual
subject have a cause of complaint against a foreign
state he makes proper representations to his own gov-
ernment. The case is investigated, and, if the com-
plaint is found to be well grounded, redress is demand-
ed in the diplomatic way. It is only when the cause
of complaint is unusually serious, or when redress has
been refused or needlessly delayed, that recourse is had
to hostile methods in order to obtain justice.
Citizens of one country travelling or resident in an-
other are not only subject to the local laws, they are
bound to observe them in good faith and in every de-
tail. They are not entitled to the protection of their
own government when their conduct has been such as
to amount to a violation of such local laws. " It is a
perfectly well-understood principle of law that no cit-
izen of a foreign nation excepting, perhaps, in certain
cases, a representative clothed with diplomatic privi-
leges is free from the obligation of conforming him-
self to the laws of the country in which he is resid-
ing-" 1
(c.) The Right of Reputation, This right presents
itself in two aspects. 1st. A state is entitled to re-
spect as to its internal affairs. This includes the recog-
nition of its government and institutions, of the meth-
ods and agencies by which that government is main-
tained and administered, and of the officers who com-
pose it, each in his proper function, from highest to
lowest. 2d. A state is entitled to respect as an inde-
pendent body politic, and as a member of the great
1 Mr. Adams's Statement in the Geneva Case. Creasy, p. 157.
74; OUTLINES OF INTERNATIONAL LAW.
family of states in which all nations have equal rights.
From this point of view a state may be regarded as a
moral being, capable of acquiring and enjoying a good
reputation; entitled, by right, to immunity from in-
sult or injury to such reputation, and liable to the ob-
ligation of respecting the reputation of other states.
It is, therefore, its duty to resent insults offered to its
moral dignity, to its flag, which is the visible symbol
of its majesty and power, and to the ministers or pub-
lic officials who represent it abroad.
(d.} The Duty of Non-interference. As states are
entitled to a complete immunity from interference in
their internal concerns, a corresponding duty devolves
upon them to refrain from interfering in the internal
affairs of other states. This is called the duty of non-
interference. JSTo occasion less urgent than self-pres-
ervation, or the infringement of treaty stipulations, can
justify such acts of interference.
(<?.) The Enforcement of Treaty Stipulations. Trea-
ties are voluntary engagements entered into by sove-
reign states, by which mutual duties and obligations
are created or defined. They convert imperfect into
perfect rights, and so the violation of a treaty stipula-
tion may afford just cause for war.
{f.} The Right of Interference. In international af-
fairs non-interference is the rule, interference the excep-
tion. This follows from the definition of state sove-
reignty and independence. The recognition of any
other rule would strike at the very foundation of In-
ternational Law, and would render the maintenance
of general peace impossible. For this reason the right
of interference is denied save in certain extremely ex-
ceptional cases, in which the circumstances must be
PERFECT AND IMPERFECT RIGHTS. f5
of such a character as not only to justify that course,
but to render the adoption of any other impossible.
The instances of such interference, in history, are
but too frequent. In a vast majority of cases they
have not been justified by existing facts, and have led
to results in every way more deplorable than those
which they were intended to prevent. " The list in-
cludes the invasion of Holland by the Prussians in 1787,
to restore to his old prerogatives as stadtholder the
Prince of Orange, who was brother-in-law to the Prus-
sian king. It includes the infamous and pernicious
attacks on Poland by Austria, Prussia, and Russia,
the invasion of France in behalf of Louis XYI. by the
Prussians and Austrians in 1791, and the interference
of the Holy Alliance with the popularized governments
of Spain, Naples, Sicily, and Piedmont, in 1820 and
the three following years. The historical student of
these transactions will be fully qualified to form a
judgment as to whether such proceedings are calcu-
lated to promote or to impair the general benefit of
the community of nations." l
If the right of interference exists, therefore, as a per-
fect right at International Law, it can be accepted and
sanctioned only with important reservations, and can
be exercised only in accordance with, and subject to,
limitations of the severest character. It. may be said
to exist in the following cases :
(a.) To Assist a State in Suppressing an Insurrection
or Rebellion. International Law is essentially conser-
vative in character. It recognizes an existing state of
affairs, and opposes, and is slow to recognize, changes
1 Creasy, p. 289.
Y6 OUTLINES OF INTERNATIONAL LAW.
effected by violent and revolutionary methods. Inter-
ference in favor of insurgents is never sanctioned, and
when undertaken by a state is equivalent to a declara-
tion of war against the state within whose territory
the rebellion exists. Not only is armed interference
in behalf of insurgents not justifiable, but the furnishing
of any assistance, direct or indirect, or even a failure
to strictly observe neutral obligations, is a just cause
of offence. In cases of interference in behalf of a
central government, the initiative cannot be taken by
the interfering state. Assistance may only be furnished
on the request of the belligerent government, and then
only in accordance with the terms of the invitation.
(b.) In Accordance with Treaty Stipulations. It will
be seen that certain questions of strictly internal con-
cern may properly be made the subject of treaty guar-
antee. Such are the maintenance of a particular gov-
ernment or constitution, the permanent neutrality of
a state, or its existence within certain territorial lim-
its. When the particular state of affairs which has
been made the subject of guarantee is menaced with
change, or when its existence is threatened in any way,
by force applied from without, or originating within
the guaranteed territory, it becomes the duty of the
guarantor to interfere, and to carry into effect the stip-
ulations of the treaty. Interference under such circum-
stances is both just and legal. It is limited in character
and amount by the terms of the treaty which author-
izes it, and it becomes unlawful, and must cease, when the
cause of danger is removed and the internal affairs of the
state have been restored to their normal condition. '
1 The United States, in its treaty of 1846 with New Granada,
PERFECT AND IMPERFECT RIGHTS. 77
(c.) In Self-defence, A state is not only indepen-
dent within its own territory, but is entitled to an ab-
solute immunity from external interference, and from
acts of hostility or annoyance originating beyond its
boundaries, but carried into effect within its territory.
An insurrectionary movement within its jurisdiction
may be largely supported and maintained by persons
residing beyond its borders, and the offending state
may be unable or unwilling to lend its aid toward their
prevention. In such an event a state is authorized, in
the exercise of the right of self-defence, to invade the
territory of the offending state, and secure redress
for the injury it has received. To justify such a
course, however, the cause of offence must be clear,
redress must have been demanded and plainly de-
nied, and the wrong must be of such a character as
to render necessary a resort to forcible measures of
redress.
(d.) Interference in Behalf of Hie Balance of Power.
The term Balance of Power is applied to a rude equi-
librium of political forces which was established at an
early date among the different states of Europe, and
the preservation of which is sanctioned by their gen-
eral consent. It originated in an instinctive exercise
of the right of self-defence, and its continued existence
is rather a matter of policy and expediency than of
strict right. It is justified, apart from the considera-
guaranteed the sovereignty of the latter state. In 1885 it was obliged
to interfere to assist in the repression of disturbance. England and
the United States, by the treaty of 1850, agiee to interfere in certain
cases in Nicaragua. The United States, by its treaty of 1867, with
Nicaragua, is also obliged to interfere when the case exists which is
contemplated by the sixteenth article of that instrument.
78 OUTLINES OF INTERNATIONAL LAW.
tions of self-preservation that are involved, by the fact
that, at different times, it has powerfully contributed
to preserve the general peace of Europe on numerous
occasions when that peace has been threatened by the
selfish schemes of ambitious states.
Its right to exist cannot be deduced from any prin-
ciple of International Law, unless the state system of
Europe be regarded as a kind of alliance or confede-
ration, having for its purpose the maintenance of peace
and the prevention of useless and unnecessary wars. It
came into being, largely as a matter of necessity, so soon
as the great states of Europe began to assume something
of their present territorial form, and was developed
out of repeated instances of the exercise of the right
of self-preservation by those states as they found them-
selves obliged, from time to time, to impose checks
upon the power of ambitious neighbors. The first
wars waged in its behalf were those carried on by
Francis I. of France, in the first half of the sixteenth
century, to resist the dangerous and increasing power
of the Emperor Charles V., whose control of the al-
most unlimited resources of Spain, Germany, and the
Netherlands was a constant menace, not only to the
peace of Europe, but to the sovereignty and indepen-
dence of the other European states. From that epoch
until 1815, a period of more than two hundred and
fifty years, wars were of such frequent occurrence, and
were so long continued, as to cause a state of per-
manent peace to be regarded as a very desirable, but
extremely unlikely, contingency. Whether the great-
er number of these wars were due to attempts to
overthrow or to defend the principle, and whether
wars would have been more or less frequent had the
PERFECT AND IMPERFECT RIGHTS. fg
principle never been asserted, need not be discussed
here.
For the forty years succeeding the Congress of Vi-
enna, in 1815, the peace of Europe was certainly due
to a constant and successful observance of the princi-
ple a result in every way memorable as the first in-
stance in which peace had been maintained on the
continent of Europe for so long a time since the be-
ginning of modern history. It is as obvious, however,
that most of the great wars that have occurred since
the Peace of Paris, in 1856, have been due to the non-
observance or abuse of the principle.
The maintenance of peace in Europe during the
greater part of the first half of the present century
was not obtained without corresponding sacrifices.
The principle of the balance of power during this pe-
riod was not simply recognized or passively acquiesced
in as a desirable fact ; on the contrary, it was vigor-
ously asserted, and to a great extent maintained, by
an alliance or concert of action on the part of the
great powers. This organization was conservative in
character, and seems to have originated in an agree-
ment of the crowned heads at Paris, in September, 1815,
which has become known in history as the Holy Alli-
ance. The concert thus established was maintained
and perpetuated by the various congresses which were
held during the decade next ensuing. These alliances
were intended not only to maintain the equilibrium as
established at the Congress of Vienna, but to discoun-
tenance revolutionary movements, and, by a resort to
measures of a repressive and reactionary character, to
prevent the general adoption of even desirable consti-
tutional reforms.
80 OUTLINES OF INTERNATIONAL LAW.
At present, owing to the great increase in military
strength which has taken place in some of the more
powerful states of Europe, and to a corresponding
diminution in the importance of other states which
were formerly powerful, the existence of the equilib-
rium is in constant danger, its permanent guarantee is
impossible, and the balance is maintained from day to
day with great and ever-increasing difficulty.
De Marten's Statement of the Principle of the Bal-
ance of Power. " Every state has a natural right to
augment its power, not only by the improvement of
its internal constitution and the development of its
resources, but also by external aggrandizement, pro-
vided that the means employed are lawful; that is,
that they do not violate the rights of another. Nev-
ertheless, it may so happen that the aggrandizement
of a state already powerful, and the preponderance
resulting from it, may, sooner or later, endanger the
safety and liberty of the neighboring states. In such
case there arises a collision of rights which authorizes
the latter to oppose by alliances, and even by force of
arms, so dangerous an aggrandizement, without the
least regard to its lawfulness. This right is still more
essential to states which form a general society than
to such as are situated at a great distance from each
other ; and this is the reason why the powers of Eu-
rope make it an essential principle of their political
system to watch over the balance of power in Europe.
It is clear, also, that it is not always the extent of the
acquisition that ought to determine the danger. Ev-
erything here depends on circumstances. The annihi-
lation of a state, which at present serves as a counter-
poise, may become as dangerous to the general safety
PERFECT AND IMPERFECT RIGHTS. gl
of the neighboring states as the immediate aggrandize-
ment of another state." !
The subjoined rules are based upon the exhaustive
discussion of the subject by Yattel :
(1.) " The mere fact that a state has acquired, and is
acquiring, power greatly preponderant over its neigh-
bors, does not of itself justify other states in making
war upon it for the purpose of reducing its power.
(2.) " Under such circumstances other states are justi-
fied in watching the preponderant state with cautious
vigilance, and in forming leagues with each other for
mutual defence from it.
(3.) " If the preponderant state commits acts of injury
against its neighbors, or any of them, or, by the arro-
gance of its pretensions, the tone of its public de-
spatches and manifestoes, or by any other course of
conduct, beyond the mere increase of its strength, it
clearly threatens to attack or oppress its neighbors,
then other states are justified in combining together
and in making war upon it, so as to prevent it from
committing disturbance of the general security of the
commonwealth of civilized nations, or of the security
and independence of any of them." *
These are to be accepted, however, with certain lim-
itations :
(1.) The internal development of the resources of a
country has never been considered a pretext for such
an intervention, nor has its acquisition of colonies or
dependencies at a distance from Europe. It seems to
be held, with respect to the latter, that distant colo-
1 Creasy, " First Platform of International Law," pp. 279, 280,
citing De Martens, 122-124.
* Creasy, p. 285 ; Vattel, book iii., chap, iii., 42-50.
6
82 OUTLINES OF INTERNATIONAL LAW.
nies and dependencies weaken, and always render
more vulnerable, the metropolitan state.
(2.) Although the increase of the wealth and popula-
tion of a country is the most effectual means by which
its power can be augmented, such an augmentation is
too gradual to excite alarm.
(3.) The injustice and mischief of admitting that na-
tions have a right to use force for the express purpose
of retarding the civilization and diminishing the pros-
perity of their inoffensive neighbors are too revolting
to allow such a right to be inserted even in the lax
code of International Law.
(4.) Finally, therefore, interferences to preserve the
balance of power have been confined to attempts to
prevent a sovereign already powerful from incorpo-
rating conquered provinces into his territory, or in-
creasing his territory by marriage or inheritance, or
exercising a dictatorial influence over the councils of
an independent state. 1
(e.) Intervention in Behalf of an Oppressed Popula-
tion and Against the Government of a State. From
the definition of a state it is clear that any interfer-
ence between a state and its subjects is opposed to the
fundamental principle of International Law. It should
be an event of the rarest occurrence, and would be
justified only in cases of the greatest emergency. As
a matter of fact, it has occurred but too frequently,
and has rarely been justified by existing circumstances.
A rule deduced from the experience of nations would,
therefore, express the conditions under which the law
1 Essay by N. W. Senior, on " Interference to Support the Bal-
ance of Power," in No. 77 of the Edinburgh Review, cited by Creasj r ,
pp. 285, 286.
PERFECT AND IMPERFECT RIGHTS. 33
of nations had been disregarded, and set at defiance, or
evaded, rather than obeyed. It is possible, however,
for a case to exist in which a part of the people of a
state may be so oppressed or persecuted as to warrant
other states in interfering upon grounds of humanity.
Such a case would be likely to occur when a part of
the population of a state was of a different race or re-
ligion from the great majority of their fellow-subjects,
the acts of oppression originating in race or religious
prejudice. The mere fact that a people belonging to
a particular race, or professing a particular religious
belief, were placed at some disadvantage by the law
or policy of a state, would constitute no valid ground
for remonstrance, still less for interference. To jus-
tify acts of positive interference one or more of the
following conditions must be fulfilled :
(1.) A remedy for the wrongs complained of must
first be sought in the way of protest or remonstrance.
(2.) The oppression or persecution must be so serious
in character and so great in amount as to incur the
condemnation of the civilized world, and the act of in-
terference must be participated in, or sanctioned by,
all the states of Christendom.
(3.) The interference must be limited to the appli-
cation of a remedy to the wrong complained of, and
should cease so soon as substantial guarantees are fur-
nished that the wrongful acts will not be repeated. 1
2. Duty of Mutual Respect. A state, in its capacity
as a body corporate, has not only a right of reputa-
tion, but is entitled to certain external and visible
tokens of respect in recognition of its dignity and im-
1 Hefftcr, pp. 97-99.
84: OUTLINES OF INTERNATIONAL LAW.
portance as a member of the great commonwealth of
nations. This consideration is also extended to those
persons who represent a state in an official capacity.
Within its territorial limits the honors to be paid to
its officers are determined largely by custom and tra-
dition ; to a certain extent, also, they are recognized
and sanctioned in its municipal laws. Without its ter-
ritorial jurisdiction the question is regulated by the
usage of nations, and certain honors which have been
received and paid during long periods of time are, by
such long-continued usage, recognized as obligatory at
International Law. " These are matters of, perhaps,
trivial importance in themselves, but their due observ-
ance facilitates the amicable intercourse of nations,
and their neglect frequently leads to international dif-
ferences, discussions, and enmities, which have some-
times terminated in long and bloody wars." 1
The practice originated in the honors shown to sov-
ereigns in early times, when they represented, to a
greater degree than is now the case, the majesty and
sovereignty of the states which they ruled by heredi-
tary right, and whose territory they regarded as their
own. This early view culminated toward the close of
the seventeenth century, when Louis XIY. was at the
height of his power, and before the principle of popu-
lar sovereignty had begun to make itself felt as a po-
litical force in state aifairs. During this period there
was no surer cause for war than a failure in respect
toward a great sovereign or his representative, and
not a few of the many wars waged were caused or
prolonged by no better reasons than this. From that
1 Halleck, vol. i., p. 107.
PERFECT AND IMPERFECT RIGHTS. g5
time onward the practico began to decline in impor-
tance, and merely regal honors began to be less strongly
insisted upon. The power and dignity of the state itself,
rather than that of its ruler, began to be regarded as the
real object of honor and respect. Within the last cen-
tury the general tendency of treaties and usage has
been to diminish the number and variety of these
ceremonial observances, and to simplify and regulate
those which have been retained, or whose continued
observance is deemed necessary or desirable.
At the present time all states are regarded as being
equal in right and dignity, and the honors now ob-
served are regarded as due :
(1.) To the state itself, in its sovereign capacity.
These consist in certain honors paid to its flag, to its
sovereign or chief executive, as the representative of its
sovereignty, to its ships of war in foreign ports or on
the high seas, and to organized detachments of its
land forces when in foreign territory.
(2.) To those persons who represent it abroad in an
official capacity. Under this head fall certain honors
and marks of respect shown to its ambassadors and
consuls in their different grades, and to persons in its
civil or military service Avhose duties are performed
in foreign territory, or who appear in such territory
in an official character.
The observance of these forms is now held to be ob-
ligatory :'
(1.) In the forms of mutual courtesy. This is shown
chiefly in the recognition of an existing form of gov-
ernment, including its sovereign, or executive, and oth-
er administrative officials, whose functions are pro-
vided for by its constitution and laws. In former
gg OUTLINES OF INTERNATIONAL LAW.
times none but monarchies were recognized as having
the first rank, and an order of precedence was estab-
lished among them, based largely upon the rank and
titles of their respective sovereigns. Eepublics were,
to some extent, disfavored, and in matters of honor
and precedence were relegated to a place of secondary
or minor importance. This is no longer the case, how-
ever, and all sovereign states are now placed upon a
footing of perfect equality in all matters of ceremonial.
A state, as an incident of its sovereignty, may reg-
ulate the honors to be paid within its jurisdiction to
its own flag and officials, and to those of foreign states.
It may also prescribe the conduct of its representa-
tives abroad, subject to the limitation that its instruc-
tions cannot be carried into effect if they are opposed
to, or inconsistent with, the usages or policy of the
state within whose jurisdiction it is attempted to ex-
ercise them. In accordance with this principle every
state prescribes, in its laws or regulations, the forms
of respect to be shown to its flag, or to the person in
whom its sovereignty is vested, and no greater hon-
ors may be shown to a foreign sovereign than are thus
prescribed to be paid to its own sovereign or chief ex-
ecutive.
(2.) In naval and military ceremonials observed on
the high seas, or in the territorial waters of a state,
between ships or fleets, between ships in port, and be-
tween ships and forts or fortified places.
(3.) In similar observances, on land, between armies,
forts, military and naval officers, and in certain mili-
tary honors shown sovereigns, or to the higher grades
of civil officers in the administrative or diplomatic ser-
vice of a state.
PERFECT AND IMPERFECT RIGHTS. 7
(4.) In the formality and ceremonial observed in
diplomatic intercourse and interstate correspond-
ence.
Maritime Ceremonial. The subject of maritime
ceremonial is regulated by usage, and, to a percepti-
bly increasing extent, at the present time, by treaty
and agreement of the maritime powers. Ships of
war visiting foreign ports have a peculiarly represent-
ative character. They are required to pay certain
honors to the territorial sovereign and his representa-
tives, and may expect in return that special respect
shall be shown to the flag under which they sail, and
to the state whose commission they bear.
The forms of maritime ceremonial consist in the
firing of salutes, manning the yards, dressing the ship,
and in hoisting the flag of the state or person saluted.
It is also customary, in firing salutes in port, to furl
the sails ; and a similar practice prevails of hoisting a
particular sail in saluting or returning the salutes of
war ships or fleets at sea. The national flag of a pub-
lic armed vessel, however, should never be lowered as
a token of respect to any foreign state or individual.
As an expression of grief it may be lowered to half-
mast ; it may be dipped in returning a similar salute
rendered by a foreign vessel, but in every other case
it should be carried in its proper situation during those
hours of the day in which its display is required by
regulations.
Ceremonial on the High Seas. "When two ships
of war meet upon the high seas, courtesy requires that
the commanding officer lowest in rank shall salute first."
" The same rule holds with respect to the flag-ships of
squadrons ; but a single ship, no matter what its rank,
88 OUTLINES OF INTERNATIONAL LAW.
meeting a squadron, salutes first." 1 "These are re-
turned gun for gun. Vessels carrying sovereigns, mem-
bers of royal families, rulers of states, and ambassadors
are to be saluted first." *
Merchant vessels of the same or different nations,
meeting or passing upon the high seas, usually hoist
their national colors, but otherwise do not, as a gen-
eral rule, salute each other. It is customary, however,
for them to ascertain, by hailing or the use of signals,
the name, origin, destination, and cargo of passing ves-
sels. This information is noted in the ship's log, and,
as a matter of commercial news, is sometimes reported
to the port of origin of the vessel hailed.
Ceremonial in Foreign Ports. The first duty of
a ship of war upon its arrival in a foreign port is to
salute the flag of the state within whose jurisdiction
it has come. If public vessels of other nations are in
port, their flags are saluted in a similar manner. " This
salute is a compliment to the flag, and consequently is
considered international rather than personal. The
same rule holds with respect to the interchange of
compliments and visits with the authorities on shore ;
the compliment or visit being first made from the ves-
sel, without regard to relative rank, even if it were
possible to fix any relative rank for officers so different
in their nature and character. The rule making such
compliments international avoids any necessity of at-
tempting such assimilation." 3
1 Halleck, vol. i., p. 114. 2 Ibid.
3 This rule is a very general statement of the international obliga-
tion, and applies to ceremonial visits in which, from the nature of
the case, it is impossible to establish a standard of relative rank by
which to determine the official precedence of the persons by whom
the visits are received and returned. Where such a scale of relative
PERFECT AND IMPERFECT RIGHTS. gg
" An apparent exception is made to this rule, in the
case of vessels carrying persons of sovereign rank,
members of the royal family, or ambassadors repre-
senting sovereigns or sovereign states. In such cases
the forts, batteries, and garrisons always salute first.
But such salutes are intended for the persons carried,
and not for the vessel carrying them, and, consequent-
ly, the vessel does not return the salute. It is custom-
ary, however, for such vessel, if foreign, to afterward
salute the fort or garrison in the usual manner ; which
salute is, of course, to be returned gun for gun. Am-
bassadors visiting foreign ports, not the capital or seat
of the court of a sovereign or a sovereign state, first
receive the visits and compliments of the local author-
ities. This rule of courtesy results from their sup-
posed representative character. Where vessels of war,
in foreign ports, land or receive on board their own
sovereigns, or officers of their own government, the
salutes to be given and ceremonies to be observed
are to be determined by their own laws and regu-
lations. The same remark applies to the compli-
ments to be paid on such occasions by other ships in
port, and by the military establishments on shore,
each being governed by their own laws and regula-
tions." '
Maritime Honors to be Paid to Ambassadors and
Consuls -The duty of interstate respect having been
performed, such salutes and formal visits as are pro-
vided for by the navy regulations of its own state are
rank has been agreed upon or is generally recognized, as is the case
with the military or naval officers of different states, the present
tendency is to require the first visit to be paid by the junior in grade.
1 Halleck, vol. i., p. 115.
90 OUTLINES OF INTERNATIONAL LAW.
paid to its diplomatic and consular representatives who
are resident or present in the visited port.
International Agreement as to Salutes. A proposi-
tion originating with the British government has re-
ceived such general approval and sanction from other
maritime powers as to entitle it to acceptance as an
international usage. In accordance with its terms the
following classification is made of salutes :
" I. Salutes not to be returned :
" (1.) To royal personages, the chief of a state, and to
members of royal families, whether on arrival at or de-
parture from any port, or upon visiting a ship of war.
" (2.) To diplomatic, naval, military, or consular au-
thorities, or to a governor, when visiting a ship of war.
" (3.) Salutes upon occasions of national festivals.
"II. Salutes which are not considered as personal,
and should therefore be returned gun for gun.
" (1.) To the national flag on arriving at a port.
"(2.) To flag-officers when met with at sea or in
port." 1
Observance of National Anniversaries. "Vessels
of war in foreign ports celebrate their own fetes ac-
cording to the regulation of their own government.
Courtesy also requires them to take part in the na-
tional fetes of the place, by joining in public demon-
strations of joy or grief. The same mark of respect
is shown to vessels of a third power which celebrates
fetes in foreign ports. But if such celebrations are of
a character to offend or wound the feelings of their
own countrymen, or the nation in whose waters they
are anchored as public rejoicings for a victory gained
1 Adopted by the United States August 18, 1875. " Foreign Rela-
tions of the United States," pt. h., pp. 656, 657.
PERFECT AND IMPERFECT RIGHTS. 9}
ships of war will remain as silent spectators or leave
the ports, according to the circumstances of the case.
In public ceremonies upon land the commandants of
vessels or fleets usually land with the officers of their
staff, and receive a place of honor according to the
hierarchy of rank, precedence being determined by
grade, and, if equal, by date of arrival. In case of dis-
putes as to rank, it is proper for the contestants to with-
draw, and become mere spectators of the ceremonies." '
Visits of Ceremony. When a public armed vessel
arrives at a foreign port it is customary for the proper
naval authority of the port to send an officer on board
the arriving ship to tender the courtesies of the port
to the commanding officer ; the same usage is obliga-
tory upon the commanders of fleets or vessels of other
nations who happen to be in port at the time. These
offers are at once acknowledged by the commanding
officer of the arriving fleet or vessel. Within twenty-
four hours after the arrival of the foreign vessel a for-
mal visit is paid to the same persons by the commander
of the arriving vessel, if of equal or junior grade, and
these visits are returned within the same limits of time.
In accordance with the present usage, however, if the
commanding officer of the arriving vessel be the senior
in grade the first visit will be paid by the inferior.*
Ceremonial on Land. A similar ceremonial is ob-
served on land, between armies, forts, and military or
naval officers representing different states, who come
into official or personal contact in the performance of
1 Halleck, vol. i , pp. 116, 117.
s "British Navy Regulations," art 57, p. 15; "French Navy Reg-
ulations," art. 851, p. 243; Circular No. 3, "United States Navy De-
partment," April 28, 1877.
92 OUTLINES OF INTERNATIONAL LAW.
their official duties. Suitable military honors are paid
to foreign sovereigns and ambassadors, and to the high-
er grades of officials of the civil or military service of
a foreign state.
The Formalities of Diplomatic Intercourse. The
privileges and immunities of public ministers, and the
usages which are observed in diplomatic intercourse,
will be discussed in the chapter on ambassadors and
consuls.
3. Imperfect Rights. There is another class of state
rights or duties to which attention will now be drawn.
It has been seen that a state, in its capacity as a body
politic, possesses many of the attributes of a moral
person. It may express sympathy, it may perform
acts of charity, humanity, or courtesy, and may be held
morally responsible for their non-performance. The
performance of such acts is incumbent upon a state for
the same reason and to the same extent that it is in-
cumbent upon an individual. Its failure to perform
them, like a similar failure on the part of an individ-
ual, violates no perfect right, and is therefore not pun-
ishable, or a proper subject for redress. As a nation
is actuated to the performance of these duties by con-
siderations of courtesy or good-will ', and as a failure to
observe them does not constitute a sufficient cause for
war, they are called imperfect rights; or, since they
are founded upon considerations of moral obligation,
they are sometimes called moral claims. 1
The following are some of the more important of
these imperfect rights or duties :
1 Dr. Woolsey was, I think, the first to use this term. It explains
the obligation more fully than does the other, which is the more gen-
erally used.
PERFECT AND IMPERFECT RIGHTS. 93
(a.) The Duty of Humanity. A state, in the per-
formance of this duty, has chiefly to do with individ-
uals who are obliged to seek shelter in its territory
from acts of hostility or from the perils of the sea.
The cases of the crews of wrecked vessels, or those of
ships of war or merchant vessels seeking refuge from a
superior force of the enemy, and of bodies of defence-
less troops fleeing across a neutral frontier to escape
capture, are illustrations of the performance of this
duty.
The duty of humanity, however, is not of exclusive
application to individuals. "If a nation is suffering
under a famine, all others having a quantity of provis-
ions are bound to relieve its distress, yet without there-
by exposing themselves to want." l " The like assist-
ance is due whatever be the calamity by which a nation
is afflicted. Whole sections of countries are sometimes,
devastated by floods, and cities and towns destroyed
by fires and earthquakes, leaving vast numbers of peo-
ple destitute of the means of shelter and subsistence.
It is, first, the duty of their own government to pro-
vide for these wants ; but not infrequently the calam-
ity is so great that the government is unable to give
its aid to the extent and within the time required to
render its aid efficacious. In such cases the laws of
humanity would impose a duty on others. In many
instances of this kind, however, the active charity of
individuals and communities renders any action on the
part of the governments of other states unnecessary.
But a government may always stimulate and assist
such charity, and by thus reflecting and giving effect
1 Halleck, vol. i., p. 406.
94: OUTLINES OF INTERNATIONAL LAW.
to the general feelings of its people manifest its sym-
pathy and generosity. Of such a character was the
assistance rendered by the government of the United
States in transporting to Ireland the contributions of
provisions spontaneously oifered by the American peo-
ple." 1
(>.) The Duty of Comity. " There is a set of cour-
teous and convenient observances, usually followed in
the conduct of states toward each other, too definite,
and often too minute and conventional, to make it
proper to call them moral principles. The violation
or neglect of these is not considered sufficient in itself
to justify war, though one state is, by such violation
or neglect, often placed in an attitude of avowed ill-
will and suspicion toward another state. These ob-
servations of courtesy and convenience are said to de-
pend on what jurists and statesmen style the comity
of nations." a The practice of extradition, the recogni-
tion of the principles of Private International Law, the
privileges of exterritoriality extended to foreign sov-
ereigns and ambassadors, to armies in transit, and to
public armed vessels, are all based upon the comity of
nations.
(c.) The Duty of Intercourse. In the discussion of
this duty it is necessary to regard it from two points
of view, and to consider, 1st. The duty of a state to
enter into relations of intercourse with other states,
to send and receive ambassadors, to permit consuls to
reside and to perform their duties in its commercial
cities, to negotiate treaties, and to permit aliens to
travel or reside in its territory. 2d. The duty of com-
1 Halleck, vol. i., p. 407. ' Creasy, p. 36.
PERFECT AND IMPERFECT RIGHTS. 95
mercial intercourse, which consists in permitting for-
eigners to engage in commerce with its subjects, and
to exchange its products for those of other nations.
In the former case a nation, by establishing a rule
of strict non-intercourse, shuts itself out from being a
party to International Law. It declines to be bound
by its sanctions, and it cannot of right expect other
states to observe them in such casual and irregular in-
tercourse as they may have with it. Aliens who enter
its territory do so at their peril ; and, as its own citi-
zens in foreign parts cannot look to their own govern-
ment for protection, many of their wrongs must go
unredressed. It is not necessary to discuss the subject
further, for the reason that no state now assumes, or
has ever assumed, such an attitude of complete isola-
tion. It is only necessary to observe, in this connec-
tion, that, in proportion as a nation withdraws itself
from intercourse with other states, or hampers its in-
ternational relations with needless and burdensome
restrictions, in the same proportion it withdraws itself
from the benefits and privileges of International Law. .
If it ceases to sanction, or formally withdraws, privi-
leges which have been granted to other states, or to
aliens resident within its territory, or which they have
enjoyed with its tacit consent, it is guilty of a viola-
tion of comity which will gain for it the ill-will of na-
tions, and, if such a policy be persisted in, may in the
end result in measures of retaliation.
In respect to the duty of commercial intercourse, it
has been contended by some writers that the right to
such intercourse is a perfect right, and that a refusal
to enter into commercial relations is a just cause for
war. Others claim that such intercourse is a perfect
96 OUTLINES OF INTERNATIONAL LAW.
right only when an article of commerce is produced by
one state which is absolutely necessary to the existence
of another. Neither of these views is fairly deducible
from the fundamental principles of International Law.
In the first place, while many articles of trade are high-
ly desirable, none have thus far been shown to be so
absolutely necessary and indispensable as to justify a
resort to forcible methods to obtain them. Such a
view is not to be inferred from the theory of state
sovereignty and independence, and a refusal to enter
into such relations would certainly not justify acts of
hostile interference. " Vattel lays down the general
rule that every nation, in virtue of its natural liberty,
has a right to trade with those which shall be willing
to correspond with such intentions, and to molest it in
the exercise of its right is an injury." l " The obliga-
tion of trading with a foreign state is imperfect in it-
self, and gives them only an imperfect right, so that,
in cases where the commerce would be detrimental, it
is entirely void." a " China and Japan for a long time
declined all commercial intercourse with other nations,
and even now permit only a very restricted trade, in
particular articles and at particular places. The ques-
tion was at one time discussed whether these people
could not be compelled to open their ports to foreign-
ers, and engage in trade and general intercourse
with the rest of the world. But, as a question of in-
ternational jurisprudence, it scarcely merits considera-
tion. No doubt on this point could arise in the mind
of any person except those who contend that the rules
1 Halleck, vol. i., p. 402.
a Ibid., p. 404 ; Vattel, "Droit de Gens," liv. ii., chap, ii., 24-48
PERFECT AND IMPERFECT RIGHTS. 97
of International Law adopted by Christian nations are
wholly inapplicable to the countries of Asia. But this
opinion, although at one time supported by writers of
unquestionable ability, is now almost universally re-
jected by publicists." '
References. For a discussion of the fundamental, or perfect,
rights of states, the student is referred to the following authori-
ties : Hall, " International Law," pp. 37-50 ; Creasy, " First Plat-
form of International Law," chap. viii. ; G. F. De Martens, " Precis
du Droit des Gens," liv. iii., chaps. 1-3; liv. iv., chaps. 1-4; Hal-
leek, vol. i., chaps, iv.-vii., and chap. xiii. ; Vattel, chap, iii., 35-
48 ; "Woolsey, 36-52. For the rules and forms of international
ceremonial, diplomatic, naval, and military, see Halleck, chap, v.,
15-29; Ortolan, ''Diplomatic de la Mer;" G. F. De Martens,
liv. v., 175-184; Heifter, liv. iii., chaps. 1 and 2; Vattel, chap,
iii., and the naval and military regulations of various states. The
subject of" Imperfect Rights " is treated by Creasy, pp. 15-23 ; Phil-
limore, vol. i., pp. 181-183; Halleck, vol. i., chap, xiii., 1-25,-
G. F. De Martens, liv. v., 164-184; Vattel, bk. ii., chaps, i. and
ii. Under the head of duties, or moral claims, this subject is quite
fully treated by Dr. Woolsey. " International Law," 22-25.
1 Halleck, vol. i., p. 405.
CHAPTER IY.
NATIONAL CHARACTER.
1. National Character of an Individual, how De-
termined? The national character of an individual
is determined by his citizenship.
2. Definition of the Term Citizen. A citizen or sub-
ject of a state is an individual member of the body
politic, owing it allegiance and entitled to its protec-
tion in person and property. The terms citizen and
subject, as used in International Law, have precisely the
same meaning. They apply to all the inhabitants of
a state, of both sexes, and of all ages and conditions.
The term citizen is usually applied in states having
republican forms of government ; the term subject in
those having monarchical institutions. Jt is not an
essential condition of citizenship that an individual
subject or citizen should have any share in the govern-
ment of a state. His position at International Law is
the same in either case. The right of suffrage is strict-
ly municipal in character, and is a privilege granted, or
withheld, by a state in accordance with its constitution
and laws. In some states it does not exist, in others
it is greatly restricted, in none does it extend to all
who have the rights and privileges of citizenship. 1
1 In the United States it is possible, however, for an alien to ac-
quire the right to vote, in many states, without becoming a citizen
of the United States. But such persons would not be citizens of
NATIONAL CHARACTER. 99
3. Classification of Citizens. Citizens or subjects
may be either native lorn or nattiralized. The first is
a natural, the second an artificial, state of allegiance.
A native-born citizen is one born within the territory
of a state, and subject to its jurisdiction. This condi-
tion of allegiance is called the citizenship of birth, or
nativity. It adheres through life, unless terminated
by expatriation, or by process of law. TVhen the na-
tionality of an individual is drawn in question, his citi-
zenship by birth is always presumed, and it is incum-
bent upon him to prove any subsequent change of
allegiance. If, however, he has acquired another na-
tional character, by undergoing the process of natural-
ization elsewhere, with the consent of his native state
as expressed in its laws and treaties, he is as fully a
citizen of the latter state as if he were there native
born, and is as fully entitled to its protection. 1
the United States, and would not be entitled to its protection abroad.
Tbey are not citizens according to the rule of International Law.
1 The term native-born citizen is extremely difficult of definition,
for the reason that it is impossible to deduce a uniform rule upon
the subject which is observed by all nations. Most modern states,
however, follow one of two rules, and determine the nationality of
a child, 1. By the nationality of its parents; 2. By the place of its
birth. Until the close of the last century the former rule prevailed
among most civilized states. Since the beginning of the present
century, and by reason of the greater and more frequent movement
of individuals from one state to another, and especially to newly-
settled countries, the second rule has acquired great prevalence.
"England and the United States claim all persons born within their
territory as native born citizens, whatever may have been the na-
tionality of their parents. Denmark, Portugal, Holland, and Italy
follow substantially the same rule, as, with some exceptions, do
France, Belgium, Baden, Greece, and Spain. The other states of
Europe regard a child as having the citizenship of its parents. The
definition stated in the text applies more generally than any other.
100 OUTLINES OF INTERNATIONAL LAW.
A naturalized citizen is one who has relinquished
his citizenship of nativity, and has acquired a new al-
legiance in a state other than that of his birth.
The citizenship of a dependent person is that of his
principal or superior. Hence the citizenship of a child
is that of his father, if legitimate, of his mother, if ille-
gitimate; of a ward that of his guardian; of a wife
that of her husband. Hence children born on the
high seas, or while passing through foreign countries,
have the legal nationality of their parents. Citizen-
ship in a state may be renounced by an individual with
a view to undergoing the process of naturalization
elsewhere. It may also be terminated by process of
law, as by sentence of death or exile, which in most
states has the effect of destroying civil rights. It may
be forfeited by emigration, or by long-continued ab-
sence. Once forfeited it may be resumed with the
consent of the native state, by a compliance with the
formalities of its municipal law.
4. Naturalization is that process of municipal law
by which an individual effects a change in his national
character.
Most states that recognize the sanctions of Inter-
national .Law claim and exercise the right of admit-
ting foreigners to their allegiance, and of bestowing
upon them the privileges and responsibilities of citizen-
ship. Nearly all of them recognize the right, on the
part of their subjects, of renouncing their native alle-
giance and of acquiring a new citizenship in a foreign
state. The process of naturalization consists of two
essential parts : 1st. A renunciation of the old allegi-
ance. In some states this is expressly required, in
others it is presumed by the act of naturalization.
NATIONAL CHARACTER. 101
From the nature of allegiance it is obvious that an
individual can maintain the relation to but one state
at a time. 2d. A formal assumption of the duties and
obligations of citizenship in the new state. This is
usually effected by an oath of allegiance. A period
of residence is also required as a condition precedent
to naturalization.
Conditions of Naturalization. The following con-
ditions of naturalization are now generally sanctioned
by the usage of nations.
(a.) The result of the process of naturalization is to
effect an entire change in the national character of an
individual. He is as fully invested with the rights of
citizenship in the new state as if he were there a native-
born citizen, and is entitled to the same extra-territorial
protection. Such protection can be extended to him
in the state of his nativity only as the result of treaty
stipulation.
(5.) A state, by exercising its right of naturalization
in favor of an individual, cannot absolve him from any
legal obligations due to his former sovereignty at the
time of his emigration ; and he is liable to be held to
the performance of such obligations should he return
at any time to the jurisdiction of his native state.
(<?.) An individual, after having been naturalized in a
state, may renounce such citizenship, and may renew
his native allegiance, or may form a new tie of citizen-
ship elsewhere. Should he return to his native state
and settle there, with the intention of remaining, he is
usually regarded as having forfeited his acquired alle-
giance, and his citizenship of nativity is resumed.
(d.) The municipal laws of every state enumerate
and define the rights and privileges which may be ac-
102 OUTLINES OF INTERNATIONAL LAW.
quired by its naturalized citizens. In no case do such
persons acquire all the privileges of native-born citi-
zens. The most usual restrictions apply to the holding
of political and military office, the highest grades of
which, in every state, can only be filled by native-born
citizens. In the United States^ whose policy of natural-
ization is extremely liberal, the offices of President and
Vice-President can only be held by native-born citizens.
(<.) A naturalized citizen who returns to his native
country and takes up his residence there with the in-
tention of remaining, is presumed to have renounced
his acquired citizenship. His adopted country, in such
an event, is justified in declining to extend its protec-
tion to a person who has ceased to perform the duties
of citizenship, and who declines to be bound by its ob
ligations.
These rules are illustrated by several cases arising
in the foreign relations of the United States.
(1.) Heinrich's Case. This occurred in 1872. Hein-
rich was born in the city of New York, in 1850, of
Austrian parents who were temporarily resident there.
They were never naturalized in the United States, and
so, in accordance with the naturalization treaty with
Austria, were never citizens of the United States. In
1852 Heinrich returned with his parents to Austria,
where for the next twenty years he remained, per-
forming none of the duties of an American citizen,
but, on the contrary, enjoying some of the rights and
privileges of Austrian citizenship. In 1872 he was
notified that he would be held to the performance of
his military duties in Austria. To this he demurred,
claiming the interposition of the American minister in
his behalf, upon the ground that he was an American
NATIONAL CHARACTER. 103
citizen. According to the several municipal laws of
the interested states he was a native-born citizen of
the United States because born in its territory; of
Austria because of his Austrian parentage. After some
correspondence the United States government declined
to interfere in his behalf on the ground that he had
expatriated himself : 1st. By his long residence in Aus-
tria, by which he created the presumption that he in-
tended to reside there permanently ; 2d. By his having
signified his willingness to become an Austrian sub-
o o
ject, by obtaining passports and travelling under them
in that character.
Case of Martin Koszta. Koszta was a Hungarian,
and so a native born citizen of Austria. He was con-
cerned in the revolutionary outbreak of 1848, and at
the unsuccessful termination of that movement effected
his escape to Turkey, where he was arrested and im-
prisoned, but finally released on condition that he
should quit Turkish territory. He went to the United
States, took up a residence there, and at the proper
time made a declaration in due form of his intention
to become an American citizen. In 1853, and so before
the naturalization process had been completed in his
case, he went to Smyrna on business, and was there
granted a travelling pass by the United States consul
This paper conferred upon him, to a certain extent, the
national character of an American, and stated that he
was entitled to American protection. Not long after
his arrival in Smyrna his presence was made known
to the Austrian consul, and, on June 21, 1853, Koszta
was seized by certain persons in the pay of the Aus-
trian consulate, and taken out into the harbor in a
boat. At some distance from the shore he was thrown
104: OUTLINES OF INTERNATIONAL LAW.
into the water, and was picked up by boats from the
Austrian man-of-war Hussar. He was taken on board
that ship and was there confined with a view to his
ultimate conveyance within Austrian jurisdiction. 1
The United States consul at Smyrna protested
against this arbitrary action, but without avail, and, as
a last resort, reported the circumstance to the Ameri-
can Legation at Constantinople. The St. Louis, a pub-
lic armed vessel of the United States, commanded by
Captain Ingraham, happened to be lying in the harbor
of Constantinople at the time, and Captain Ingraham
was requested by the Charge, $ Affaires to proceed to
Smyrna and demand Koszta's release, if necessary by
a resort to force. In compliance with these instruc-
tions Captain Ingraham went to Smyrna and demand-
ed the surrender of Koszta, stating that unless he were
delivered up he should take him by force of arms. As
such a conflict, aside from its international conse-
quences, would have led to the certain destruction of
much of the shipping in the harbor, and to the possi-
ble destruction of the town itself, the French consul
offered his mediation, and Koszta was delivered into
his custody pending the result of the negotiations in
his case. As a result Koszta was conveyed back to the
United States, the Austrian government reserving the
right to proceed against him should he ever return to
Turkish territory.
This case has been frequently cited as illustrating
many phases of the question of citizenship and alle-
giance. The following are the more important consid-
erations involved :
1 "Foreign Relations of the United States," 1873, part 2, p. 1298.
NATIONAL CHARACTER. 1Q5
(a.) The papers in Koszta's possession gave him the
character of an American citizen in so far as the Turk-
ish government was concerned, and entitled him to its
protection. If he were not entitled to those papers, the
question resulting was one for decision between Tur-
key and the United States.
(b.) The action of the Austrian consul was a gross
violation of the sovereignty of Turkey, and a serious
infraction of the rules of International Law.
(c.) The use of force by Captain Ingraham to secure
the release of Koszta was also without warrant of In-
ternational Law. It differed from that of the Aus-
trian officials only in that its effects were to vindicate
the sovereignty of Turkey. ITpon this ground it was
defended at the time, and generally justified.
(d.) Koszta was not an American citizen. His dec-
laration of intention to become one, however, to that
extent entitled him to a qualified amount of protection
on the part of the United States ; especially in a state
where he had the character of an alien, pure and sim-
ple, and where the question of his partially acquired
allegiance was not complicated by considerations aris-
ing out of his allegiance of nativity.
(0.) Had his case been drawn in question by any dis-
interested power, Koszta would have been regarded as
an Austrian subject. This would have resulted from
the application of the rule of nativity to his case.
(f.) If a formal decree or sentence of exile was had
against Koszta in Austria, that power could have re-
tained jurisdiction over him to the extent of giving
perpetual effect to its decree of banishment, by pre-
venting his return to Austrian territory.
Largomarsini 's Case. Largomarsini was born in
106 OUTLINES OF INTERNATIONAL LAW.
Italy, of Italian parents, and when two years of age
was brought by them to the United States. Upon
reaching the proper age, and having fulfilled the usual
conditions of residence and intention, he was natural-
ized in San Francisco, a place which he had chosen as
his durable abode. He resided there and elsewhere in
California until 1875, when he visited Italy for a tem-
porary purpose, and with the intention of returning to
the United States and of resuming his residence there
at the end of a year. A few days after his arrival in
Italy he was notified that he had been drafted into
the military service. Claiming to be a citizen of the
United States, he refused to obey the summons, and
upon this refusal he was arrested as a deserter from
the Italian military service. His case was appealed to
the highest military tribunal, where the charge of de-
sertion was not sustained, but he was held to the per-
formance of his military service. Intervention was
made in his behalf by the United States minister, but
without avail, the refusal to release him being based
upon the ground that he was an Italian subject, and
that his naturalization in the United States had no ef-
fect upon his individual status when he returned to
Italy.
Case of Ungar. Leopold Ungar was born in Bava-
ria, but emigrated to the United States, where he com-
pleted the naturalization process in 1856. In 1857 he
obtained a passport from the Department of State and
returned to Europe, passing and repassing several times
between the two countries. The last vise of his pass-
port bore the date of 1861. In 1873 he arrived in
Egypt from Italy, under an assumed name, and was
arrested at the instance of the Prussian consul in Alex-
NATIONAL CHARACTER. 107
dria. with a view to his extradition for a crime com-
mitted in Cologne. He claimed to be an American
citizen, but protection was denied him. 1. Because he
had expatriated himself ; this was proven by long ab-
sence from the United States with no intention of re-
turning. 2. Because he had voluntarily subjected him-
self to Prussian jurisdiction by committing a crime
within Prussian territory. His flight to Egypt in no
way affected the question of his national character, as
he was subject to the extradition process in Egypt, on
the demand of Prussia, in accordance with the terms
of an existing treaty of extradition between the two
countries.
It is thus seen that to make perfect and complete
the change of national character, in the case of an in-
dividual, the existence of a treaty is necessary. Many
such treaties have been negotiated in recent times.
The United States has thus far negotiated twelve
naturalization treaties, the first of them with Prussia,
in 1868. AH of them, except that with Great Britain,
stipulate for a five years' period of residence as a con-
dition essential to naturalization. All except two ' ex-
precsly provide that a naturalized citizen returning to
his native country shall be held liable to trial for all
actions punishable by the laws of his native state, com-
mitted prior to his emigration. Nine of them contain
the provision that an individual returning to his native
country shall, after a residence of two years, be pre-
sumed to have renounced his acquired citizenship. The
naturalization treaties of the United States have thus
far successfully endured the test of practical applica-
1 Great Britain and Denmark.
108 OUTLINES OF INTERNATIONAL LAW.
tion. They have been administered in a liberal spirit,
and but few cases have arisen under them for which
they have not afforded an adequate remedy.
5. Expatriation. The term expatriation is applied
to the process by which the allegiance of an individual
to a particular state is terminated. It may be volun-
tary, the act originating with the individual ; or it
may result from the operation of law ; in the latter case
it is called exile, or banishment. The act of voluntary
expatriation is, in strictness, an essential incident of
the naturalization process ; for an individual rarely puts
off his citizenship unless with the intention of changing
his national character, and this change can only be ef-
fected by undergoing the process of naturalization.
The doctrine of indelible allegiance is now either
tacitly or expressly abandoned by nearly all states
that are parties to International Law, and there is very
general agreement among them as to the following
fundamental principles :
(a.) From birth, to the date of emigration, the juris-
diction of the country of nativity is complete. It may
therefore determine the conditions to be fulfilled by
its subjects before emigration, as an incident of its
municipal jurisdiction.
(b.) The act of emigration cancels no obligation in-
curred prior to its date.
(c.) A citizen, or subject of a state, by undergoing
the process of naturalization in a foreign state, is not
released from any obligation to the state of his nativ-
ity incurred previous to his emigration. 1
(d.) The acceptance by an individual of political or
1 See case of Largomarsini, p. 106.
NATIONAL CHARACTER. 109
military office in the service of a foreign state, without
the consent of his own government, is equivalent to
expatriation. Whether this shall be permanent or not
will depend on the municipal law of the individual's
state.
While the restrictions which are placed upon emi-
gration by the municipal laws of different states vary
considerably, it is still possible to assign each of them
to one of two groups. In most of the Continental
states of Europe where a system of military conscrip-
tion prevails, the act of emigration, without permission,
involves a forfeiture of civil rights. " Each country
hampers expatriation with such restrictions as it thinks
fit, and this must probably continue to be the case so
long as the present conscription laws are retained." l
In England and the United States a more liberal pol-
icy prevails. In England the subject of expatriation
is regulated by the Naturalization Act of 1870, which
concedes the right of voluntary expatriation, and re-
gards British subjects as expatriate so soon as they
have completed the process of naturalization in a for-
eign state. In the United States a difference of view
existed, for a long time, among the different depart-
ments of the Federal government. The view of the
judiciary has been that citizenship was a compact be-
tween a state and each of its subjects, and that this
compact could not be dissolved by the latter without
the consent of the former, as expressed in its municipal
laws. This view is in substance that maintained by
the English courts on the same subject. The view of
1 Opinion of Mr. Abbot to English Naturalization Commission,
" United States Foreign Relations," 1873, p. 1248.
HO OUTLINES OF INTERNATIONAL LAW.
the political departments of the government has always
been that the right of expatriation was an individual
right, existing at all times, and capable of being exer-
cised at will. This view they have constantly endeav-
ored to incorporate into the conventional law of the
United States. In 1868 an Act of Congress was passed
declaring that " the right of expatriation is a natural
and inherent right of all people, indispensable to the
enjoyment of the rights of life, liberty, and the pursuit
of happiness." This act, which is declaratory in char-
acter, has never received judicial interpretation.
6. Aliens and Domicile. The peculiar view of al-
legiance which prevailed during the feudal period sur-
vived the downfall of the system in which it had orig-
inated, and, in the form of the doctrine of indelible
allegiance, became part of the internal political policy
of most European states. An individual, born a sub-
ject, always retained that character. Such personal
and property rights as he was permitted to enjoy grew
out of the fact of his allegiance to his native sovereign,
and were not recognized beyond that sovereign's terri-
tories. The result was to make the lot of an alien a
particularly hard one in early times. So soon as he
passed the frontiers, and entered the territory of an-
other state, he was regarded as being without rights.
Such privileges of residence and occupation as he en-
joyed were held upon sufferance only, and could be
withdrawn or cancelled at the pleasure of the sovereign
in whose territory he was resident. If he died in a
foreign country his property, both real and personal,
was forfeited to the sovereign in accordance with the
droit d?aubaine; or, at a later period, when more hu-
mane usages had begun to prevail, was heavily taxed
NATIONAL CHARACTER. HI
when withdrawn from the territory, in accordance
with the droit de detraction.
As civilization increased, and as commerce and inter-
state intercourse became general, these harsh provisions
were gradually relaxed, though they did not finally
disappear until the beginning of the present century.
Other restrictions remained, however, notably a disa-
bility in the matter of holding land, and " it is only of
late years that the right of holding lands on the same
conditions as subjects has been conceded to foreigners
by most countries." 1 In the matter of holding and
1 Boyd's Wheaton, p. 112: " In Belgium this was effected by the
law of the 27th of April, 1865.* Russia conceded the privilege in
1860. b Some of the Swiss cantons do not even now permit foreign-
ers to hold real property without the express sanction of the cantonal
government unless there be a treaty to that effect.' Austria, 11 the
Netherlands, 6 and Sweden/ only accord the right on condition of
reciprocity in the foreigner's country. The constitution of the Ger-
man empire provides that every person belonging to one of the con-
federated states is to be treated in every other as a born native, and
to be permitted to acquire real estate.* But, as regards other coun-
tries, the laws of Bavaria, Prussia, Saxony, and Wurtemberg exact
for their own subjects, when abroad, the same rights they extend to
foreigners in their own dominions. 11 In Italy, Denmark, and Greece 1
aliens are under no disabilities in this respect. The ownership of
land in the United States is regulated by the laws of the individual
states of the Union. Some states impose no restrictions on foreign-
ers; others require residence and an oath of allegiance; in others a
declaration of an intention to become a naturalized citizen of the
United States is necessary."'
"Report of (English) Naturalization Commission, 1869," p. 115.
b Ibid., p. 138. Ibid., p. 131. d " Civil Code of Austria," 33.
e " Civil Code of the Netherlands," S84r-957. ' " Swedish Statute of
Inheritance," chap, xv., 2. * Ilertslet, "Map of Europe by Treaty,"
art iii., vol. iii., p. 1931. >> "Report of (English) Naturalization Com-
mission, 1869," pp. 114, 124, 129, 138. Ibid., p. 116; Italian Civil
Code," art. iii. ; " Civil Code of Greece," art. v. > "Report of (Eng-
lish) Naturalization Commission, 1869," p. 131.
112 OUTLINES OF INTERNATIONAL LAW.
transferring personal property, the practice of nations
has been much more liberal. This difference of view
in regard to the two kinds of property was due in part
to the fact that, in early times, only land and immov-
ables were recognized as having the quality of prop-
erty, and in part to the fact that personal property,
especially in the form of money and valuables, could
be easily concealed and withdrawn from the operation
of the law. The result was that personal property
began to be made the subject of legal regulation at a
much later date, and when more enlightened views
had begun to prevail upon the subject of ownership
and property regulation. 1
The term alien i& applied to any person within the
territory of a state, at any time, who is not a citizen
or subject of that state, either by birth or naturaliza-
tion. These foreigners or strangers are susceptible of
classification into,
(.) Aliens, or Aliens Proper, including all those per-
sons who are sojourning temporarily within a state,
or who are passing through its territory.
(b.) Domiciled Strangers, including all those persons
who have acquired a legal domicile at some place with-
in its territorial jurisdiction.
From the principle that all persons within the terri-
" Feudal principles were maintained so long in England that, until
the year 1870, an alien was incapable of holding land for more than
twenty-one years; that is, he could not purchase a freehold. This,
however, was remedied by the Naturalization Act of 1870, a which
relieved aliens of most of their disabilities, and, as regards land, placed
them on the same footing as subjects." Boyd's Wheaton, p. 113.
1 Amos, " Science of Law," p. 164.
33 and 34 Victoria, chap, xiv., 2.
NATIONAL CHARACTER. H3
tory of a state, at any time, are subject to, and are
protected by, its municipal laws, it follows that aliens,
so long as they obey those laws, will be as fully pro-
tected by them as are the citizens of the state in which
they are resident. They are subject to some restrictions,
however, from which citizens are exempt ; and, on the
other hand, are not held to the performance of certain
duties to which citizens are liable from the fact of their
allegiance. The most important of these is an exemption
from personal imposts 1 and from obligatory military
service a duty, from its nature, incumbent upon citi-
zens alone. " During the American civil war the pro-
tection of England was frequently demanded by Brit-
ish subjects against conscription in the United States
army. Lord Lyons was instructed that there is no
rule or principle of International Law which prohibits
the government of any country from requiring aliens
resident within its territories to serve in the militia or
police of the country, or to contribute to the support
of such establishments. 2 But Her Majesty's govern-
ment would not consent to British subjects being com-
pelled to serve in the armies of either party where, be-
sides the ordinary incidents of battle, they would be
exposed to be treated as rebels or traitors in a quarrel in
\vhich, as aliens, they had no concern, and on their re-
turn to England would incur the penalties imposed
on British subjects for having taken part in the war. 3
1 The term impost, as here used, refers to impositions of personal
service, as for jury duty, etc., and to impositions of money in the
way of poll-taxes, or other levies upon citizens alone.
4 Despatch to Lord Lyons, No. 76, April 4, 1861.
3 Ibid., No. 349, Oct. 7, 1861; "Parliamentary Papers, North
America," 1864, No. 13, p. 34.
OUTLINES OF INTERNATIONAL LAW.
All who could prove their British nationality were,
accordingly, exempted from military service. 1 But if
a British subject had become naturalized in America,
England refused to protect him so long as he remained
there. 2 Individuals who had declared their intention
of becoming naturalized, but had not completed the
necessary formalities, were also treated as aliens, and
exempted ; 3 but Her Majesty's government declined to
interfere in their behalf if they had voted at elections,
or in any way exercised any of the exclusive privileges
of a citizen. 4 In 1863 an Act of Congress was passed
specially including 'intended' citizens in a further
enrollment of the militia ; B and a proclamation of the
President allowed sixty-five days to such persons to
leave the country, or become liable to be enrolled by
remaining. To this Great Britain acquiesced, the pe-
riod allowed for departure being deemed sufficient. 8
It was regarded as an established principle that a gov-
ernment might, by an ex post facto law, include in its
conscription any persons permanently resident in its
territory, provided it allowed them reasonable time
and facilities for departure on the promulgation of
such a law." 7 s
In states where a military establishment is main-
tained by a system of voluntary enlistments, few re-
1 Despatch to Lord Lyons, No. 379, July 29, 1861.
8 Ibid., No. 259, June 7, 1862.
3 Mr. Seward to Mr. Stuart, Aug. 20, 1862.
4 Consular Circular from Mr. Stuart, No. 99, July 25, 1862.
5 "United States Statutes at Large," vol. xii., p. 731.
6 Despatch to Lord Lyons, No. 485, Aug. 31, 1863.
7 "Parliamentary Papers, North America," 1863, No. 13, p. 34;
Despatch to Lord Lyons, No. 293, Nov. 27, 1862.
8 Boyd's Wheaton, pp. 209, 210.
NATIONAL CHARACTER.
strictions are placed upon the admission of aliens to
the military or naval service. By such an act, how-
ever, and during the period of such service, an alien
forfeits the protection of his own government, and
must look for protection to the state under whose
flag he serves. In nearly all states aliens are debarred
from holding public office of a political character, and
are denied the right of suffrage, when that right exists.
Some states still place them under special disabilities
in the matter of holding land, or engaging in business,
or following certain trades or professions ; others make
this conditional upon reciprocity. 1 In nearly all the
Continental states of Europe aliens are placed at some
disadvantage as regards subjects in instituting or main-
taining suits at law, and in testifying in certain cases.
They also require a register of aliens to be kept, and,
in many instances, claim and exercise the right of ex-
pelling them from their territories for cause. Many
of these restrictions are reasonable, and, if they are
generally known, furnish no ground of complaint to
other states whose citizens are subjected to them. In
some cases, notably in certain Mohammedan and pa-
gan countries, whose systems of government and law
are radically different from those of Christendom, the
separate treatment of aliens has been made the sub-
ject of treaty stipulation.
1 In the courts of the United States alien friends are entitled to
the same protection in their rights as citizens. Nor are their suits
barred by proof that the remedy is not reciprocal. Tayler vs. Car-
penter, Story, vol. iii., p. 458. Aliens in the United States are not
liable to militia duty. For treatment of alien enemies by the Unit-
ed States, see 4067-4070 of the "Revised Statutes of the United
States."
OUTLINES OF INTERNATIONAL LAW.
Interference T)y a Government in Behalf of its Citi-
zens Abroad. If the government of a state has reason
to believe that its citizens are being subjected to restric-
tions which are unjust, excessive, or unreasonable, it is
usual to represent the case to the offending govern-
ment in the diplomatic way, and to request their mod-
ification or removal. Should these means fail to secure
the desired result, and should the restrictions be of
such character as to amount to a denial of justice, a state
would be justified in resorting to retaliatory measures,
and could impose similar or equivalent restrictions upon
the subjects of the offending state who might be found
within its jurisdiction.
7. Domicile. Of all the persons residing in a state
at any given time two classes have elsewhere been de-
scribed aliens and citizens. Between these extremes
is found a large class of persons who are not tempora-
ry sojourners, neither have they the quality of citizen-
ship. Their residence is not transient, as is that of
aliens proper, and they are not members of the body
politic, owing it the allegiance of defence, and enjoy-
ing the rights and political privileges of citizens. These
persons are called domiciled strangers. While their
residence is to some extent permanent, they are unwill-
ing, for reasons of their own, to give up their citizen-
ship of nativity ; and it is not inconsistent with their
peculiar relation that they should cherish a remote in-
tention of returning to their native countries should it
ever become desirable to do so.
Definition of Domicile. Domicile may, therefore,
be defined as the place which an individual has freely
chosen as the centre of his domestic and jural relations,
and a domiciled stranger is an alien who, for purposes
NATIONAL CHARACTER.
of residence or business, has selected a certain place
as his durable abode, with no present intention of re-
moving therefrom.
There has been some confusion expressed in the
works of writers upon the subject as to the precise
meaning of the terms citizenship and domicile. From
the definition given it will be seen that they are not
synonymous ; indeed, in strictness, they have no pos-
sible connection with each other. The citizen is a creat-
ure of the municipal law of a state, with which other
states ordinarily have no concern. The rules of domi-
cile determine the status of an individual from the stand-
point of International Law, and have no necessary con-
nection with citizenship. Domicile is a fact, and, when
the domicile of an individual is drawn in question, is
proved, like other facts, by evidence as to residence or
intention. Citizenship results from birth, or the oper-
ation of law, and is acquired by undergoing a legal
process, the various steps of which are regulated by the
municipal law of a state. It is, moreover, a matter of le-
gal record, and, when the citizenship of an individual is
questioned, it is established by the production of a duly
authenticated certificate of origin, or naturalization.
In one state citizenship may be acquired with but
little effort ; in another with extreme difficulty, or not
at all. This is a matter of strictly municipal concern,
which every state regulates for itself as an incident of
its sovereignty. A state may make such rules on the
subjects of naturalization and expatriation as it deems
just, or suited to its policy, the only limitation being
that such laws must not project themselves into the
jurisdiction of another state, and give rise there to a
conflict of allegiance.
OUTLINES OF INTERNATIONAL LAW.
The rules of domicile, in so far as they are recog-
nized and sanctioned by International Law, must, like
all its rules, be based upon the general consent of na-
tions. A state may, by its municipal laws, grant cer-
tain privileges to domiciled strangers, but those privi-
leges are local in character, not international, and can
have no effect beyond the territorial jurisdiction of the
state granting them. In a similar way several states may
arrange, by treaty, to secure for their subjects special
privileges as to domicile in each other's territories, or
may obtain for them special exemptions from the op-
eration of certain municipal laws. These privileges
and exemptions, however, are restricted in their oper-
ation to the territorial limits of the states that partici-
pate in the treaty. An individual may also have a
domicile in several places at the same time ; indeed, a
strict application of the international rules of domicile
may cause the prize courts of a state to regard a fel-
low-citizen as an alien enemy. The opposite rule pre-
vails as to citizenship, and an individual, in his charac-
ter as a citizen or subject, can owe allegiance to but
one state at the same time.
Conditions of Domicile. (a.) To constitute domicile
there must be actual residence, with the intention of re-
maining. This intention is inferred from the acts of
an individual. If he hires or purchases a place of res-
idence, enters into business relations, makes contracts
which will require considerable time for their execu-
tion, or does any acts of a similar character which are
susceptible of being proved by evidence, a court will
deduce from such acts that intention of remaining
which constitutes domicile.
(5.) Domicile must be freely chosen. Constrained
NATIONAL CHARACTER.
residence does not give domicile. By constrained res-
idence is meant any residence not the result of free
choice on the part of an individual otherwise capable
of free action. The residence of an officer in the mili-
tary or naval service is of this character, as is that of
ambassadors, their secretaries, and the attaches of a le-
gation. The domicile of these persons is the same as
their citizenship, native or acquired. They undergo
no change of domicile, no matter how long they may
be absent from home or resident abroad, provided
such residence has an official character, and is in obe-
dience to military orders, or is in the exercise of diplo-
matic functions. The domicile of a person undergoing
a sentence of imprisonment, exile, or banishment, is
not changed by such constrained absence, unless the
exile or banishment be in the execution of a life-sen-
tence. As consuls do not enjoy the privileges of ex-
territoriality, they become domiciled, for most pur-
poses, at the place where they reside in a consular ca-
pacity. It is difficult, however, to state a rule of dom-
icile which will be of general application as regards
this class of public officers. They are subject to the
law of the place where they reside, and the legality of
~their private acts is determined by the local law. If,
in addition, they are subjects of the state in which
they are resident consuls, they differ in no respect, as
to citizenship or domicile, from other citizens. If, on
the contrary, they are citizens of the state which they
represent, in the consular capacity, their residence is
constrained, and their domicile is unchanged. 1
1 Halleck, vol. i., p. 368; Phillimore, vol. ii., pp. 310, 811; Case
of The Indian Chief, Robinson, "Admiralty Reports," vol. iii., p.
26; The Josephine, Robinson, vol. iv., p. 26; The President, Rob-
inson, vol. v., p. 277; The Falcon, Robinson, vol. vi., p. 197.
120 OUTLINES OF INTERNATIONAL LAW.
(<?.) The domicile of an inferior or subordinate per-
son is that of the legal superior. Hence the domicile
of the wife is that of the husband ; of a child, that of
the father, if legitimate, or of the mother, if illegiti-
mate ; of a ward, that of the guardian ; of a slave, that
of the master. A change in the domicile of the supe-
rior produces a similar change in the domicile of the
inferior or dependent person.
(d.) Domicile is always presumed. 1 When once the
essential conditions of residence have been fulfilled by
an individual, and when the facts of such residence
have been established by competent testimony, a court
is bound to draw the inference that the intention is to
acquire domicile. This rule is of the first importance ;
indeed, no other rule upon this subject would be sus-
ceptible of legal enforcement. The validity of a per-
son's acts must be determined by one of two systems
of law (1) that of his nationality, or (2) that of his
domicile. There can be no middle ground; one or
the other must be chosen ; otherwise the greatest con-
fusion would result. Such being the case, less hard-
ship will ensue from the adoption of the rule that the
law of a person's domicile, rather than that of his na-
tionality, shall determine the validity of his acts ; for
it is easier, as it is certainly more just and convenient,
that the local la/w should regulate his legal and busi-
ness relations, than that they should be made to de-
pend upon the law of a distant country. Indeed, the
latter course would be obviously impossible.
(e.) As domicile may be freely chosen, so may it be
relinquished or changed at the will of the individual.
1 Halleck, vol. i., pp. 367, 36a
NATIONAL CHARACTER.
To effect such a change it is only necessary for him
to fulfil, in another state, the legal conditions of domi-
cile as to residence or intention. Domicile follows the
changed conditions, and is established as a fact when-
ever its essential conditions are perfected or complied
with in any place.
The rules of domicile are of importance because they
largely determine the status of an individual at Inter-
national Law. They are applied, by the courts of all
civilized states, in the decision of cases arising in Pri-
vate International Law; and they become specially
important in time of war, since by them the character
of an individual as an enemy or neutral is fixed and
determined.
References. The international view of citizenship has changed
so radically in recent times as to render obsolete most of the liter-
ature, upon the subject of national character, which antedates the
present century. For an account of the origin and development
of the principle of popular sovereignty, to which the changed view
of allegiance is largely due, see Maine, " Popular Institutions ;"
Cooley, "Constitutional Law,'.' pp. 25, 26; Amos, "Science of
Law," pp. 13-27. For the old view of allegiance, see Grotius,
bk. i., chap, i., par. v., note, 28-32; chap, iii., par. ix. ; bk. ii.,
chap, iii., par. viii. ; and Vattel, chaps, v. and viii. For the mod-
ern view, see Halleck, vol. ii., chap. xii. ; Heffter, chap, i., ii.
Considerable interest in the subject of allegiance and national
character was manifested by many nations between the years 1860
aud 1880. During this period a number of naturalization treaties
were negotiated. For information upon the subject of Naturali-
zation, Expatriation, and Domicile, the student is referred to ex-
isting naturalization treaties, to reports of commissions upon those
subjects, and to the new works, or new editions of old works,
which have appeared since 1870. In this connection see Hall,
appendix iv., pp. 677-685 ; Halleck, vol. i., chap. xii. ; Heffter,
chap, i., ii. See, also, the " Report of the English Naturaliza-
122 OUTLINES OF INTERNATIONAL LAW.
tion Commission of 1868" ("Diplomatic Correspondence of the
United States, 1873," part ii., pp. 1232-1424). and the naturaliza-
tion treaties of the United States ; " Treaties and Conventions of
the United States, 1776-1870." The rules of domicile are very
fully discussed in Wharton and Story ; Halleck, vol. i., chap. xii. ;
Heffter, chap, i., iii. ; Phillimore, vol. iii., chaps, iii.-xxviii. ;
Hall, pp. 202 and 428 et seq. ; Boyd's Wheaton, pp. 115-393 ; Bar,
"International Law," pp. 84-109, 149, 150, 186-188, 322-326, 365-
380, 653-672.
CHAPTER Y.
EXTRADITION.
1. The Right of Criminal Jurisdiction. The right
of a state to try and punish crimes committed within
its territorial limits is indisputable. It is an essential
incident of its sovereignty. It matters not by whom
such crimes are committed, for all persons, whether
aliens, citizens, or domiciled strangers, are alike subject
to the law of the state in which they may be at any
time. They are presumed to know those laws, and a
plea of ignorance as to the law will not shield them
from the consequences of disobedience. Nor can an
individual claim the protection of his own government
in any course of action which is opposed to the law of
the state in which he is sojourning. He can demand
such protection, as a matter of strict right, only when
his behavior has been correct, and his conduct in all
respects legal.
Duty of a State as to Crimes Committed Abroad.
The duty of a state to assist other states in the execu-
tion of their criminal laws is less generally conceded.
Some writers have maintained that it is incumbent
upon every state to refuse asylum to, and upon proper
application to deliver up, all persons charged with
crimes of excessive atrocity, or which aifect the peace
and security of society. Chancellor Kent advocates
this view, and after citing authorities in its support,
gives it as his opinion that it is based upon the plain-
124 OUTLINES OF INTERNATIONAL LAW.
est principles of justice. 1 The contrary view, that ex-
tradition is a matter of comity, or treaty stipulation,
has been as ably maintained, and is now more gener-
ally accepted by text writers of authority, 8 and sanc-
tioned by the usage of nations.
Extradition fiy Comity and Treaty. The practice of
refusing asylum to foreign criminals, and of surrender-
ing them through comity, prevails to a considerable ex-
tent on the continent of Europe. In England and the
United States the almost invariable practice has been
to surrender criminals only in accordance with treaty
stipulations. While no positive rule can be laid down
upon this subject, it may, perhaps, be said that extra-
dition by comity is more common among states hav-
ing strongly centralized governments, than in those
in which representative institutions are so firmly es-
tablished as to constitute an efficient check upon the
executive branch of the government, and. where re-
strictions upon personal liberty are not readily toler-
ated.
Difference of View as to Criminal Jurisdiction.
The views as to criminal jurisdiction which prevail in
different states vary considerably, and depend, in any
particular state, partly upon its constitution and part-
ly upon the source from which it derives its system of
law. In England and the United States, where the
Common Law prevails, criminal jurisdiction is regarded
as strictly territorial. Crimes are tried and punished
at the place of their commission, and criminal courts
have no jurisdiction over offences committed beyond,
or outside of, certain territorial limits, which are ex-
1 Kent, vol. L, p. 37.
* Hall, pp. 48, 49; Bar, p. 17, and pp. 623-625, 685-686, 708-737.
EXTKADITION. 125
actly defined in the laws which create them. These
states, therefore, are willing to surrender criminals who
have taken refuge within their borders, even when
they are subjects of the surrendering state. They ob-
ject to such surrender only when the offence is of a
political character, when the definitions of crime in
the demanding state are much stricter than their own,
or when the forms of trial are such as to be regarded
as unjust, or unfair, when judged by their own stand-
ards of criminal procedure. Among the Continental
states of Europe, and in those of Central and South
America, whose criminal codes are largely based upon
the Roman Law, a different view of jurisdiction pre-
vails. The law of the state is presumed to follow a
subject wherever he may go, and to control and regu-
late his actions and conduct to the same extent abroad
as at home. Their criminal courts, therefore, have
power to try the case if the person of the offender is
subject to their jurisdiction, and so can punish a sub-
ject after his return home, for a crime committed
abroad. These states, therefore, while they will sur-
render foreign criminals who have escaped to their
territory, hesitate, and often decline, to surrender their
own subjects for crimes committed abroad.
As a result of increased international intercourse,
and with the rapid extension of commerce which has
taken place in recent times, each group of nations has
found it necessary to modify, to some extent, its pe-
culiar view of criminal jurisdiction. All modern na-
tions punish the crime of piracy, wherever committed ;
and most of them punish their own subjects for en-
gaging in the slave trade. England and the United
States punish many crimes committed by their sub-
126 OUTLINES OF INTERNATIONAL LAW.
jects beyond their territorial jurisdiction, especially on
the high seas. On the other hand, many Continental
states find it no longer necessary to assert so extensive
a jurisdiction, in criminal matters, as is warranted by
their legal systems. Jurisdiction over many offences
of small importance, amounting to misdemeanors at
common law, is now generally abandoned by them,
and crimes of a more serious character are triable only
on complaint of the injured party, when both have
come within their territorial jurisdiction. Most states,
however, punish crimes against the state, such as trea-
son, counterfeiting, etc., wherever committed, when the
person of the criminal is found within their jurisdic-
tion.
2. Definition. The term extradition is applied to
that legal process by which one sovereign state sur-
renders to another state, for trial, the person of a crim-
inal who has sought refuge within its territory.
Methods of Extradition. Extradition may be effect-
ed in three ways : 1st. By treaty ; 2d. In accordance
with the authority of municipal law ; 3d. By comity.
Few extradition treaties were in existence at the
beginning of this century, and most of those now in
force have been negotiated within the last thirty years.
Their number is steadily increasing, and the present
tendency is to regulate the surrendry of criminals ex-
clusively in accordance with their stipulations. These
treaties are usually construed with great strictness;
the list of criminal offences contained in the body of
the treaty is rigidly adhered to, and requests for extra-
dition of persons charged with crimes not mentioned
in such lists are almost invariably refused.
Extraditable Offences. The crimes for which extra-
EXTRADITION. J27
dition may be requested are those as to which there is
a concurrence of opinion among all civilized states as
to definition and punishment, and also as to the amount
of evidence necessary to secure a conviction. Wherever
that course seems necessary they are accurately defined
in treaties. Those common to most extradition treaties
are, arson, assaults of an aggravated character, bur-
glary, counterfeiting, embezzlement (a) of public funds
by a public officer, (5) by any persons, hired or sala-
ried, and to the detriment of their employers forgery,
murder, piracy, rape, and robbery.
Request for Extradition, by whom Made. In gen-
eral the request for extradition, and the consequent
surrender, are acts of high sovereign authority, and
are made in the formal diplomatic way. In the ex-
tradition treaty between the United States and Mex-
ico, however, requests for extradition may be made by
the governors, or other civil authorities, of the frontier
states, or, in case the civil authority is suspended, then
through the chief military officer in command of such
state or territory.
3. Conditions of Extradition. The following pro-
visions are included in most treaties and statutes on
the subject of extradition :
(a.) The more serious crimes only, amounting to fel-
ony at common law, are extraditable.
(5.) Those crimes only are extraditable as to which
there is a general agreement, among civilized states, in
the matter of definition, proof, and punishment.
(c.) The sufficiency of evidence as to the crime for
which extradition is asked is determined by the law
of the state in which the criminal has taken refuge.
A state, before giving effect to a request for ex-
128 OUTLINES OF INTEKNATIONAL LAW.
tradition, will punish the criminal for any offence
which he may have committed against its own munic-
ipal laws.
(<?.) Most states will surrender a criminal only with
the understanding that he is to be tried for the crime
mentioned in the request for extradition, and for no
other.
(f.) Many states, for a reason already given, decline
to surrender their own citizens, or subjects, whose ex-
tradition is asked by a foreign 'state. 1
(</.) Most states refuse to surrender persons charged
with political crimes.
(h.) Due regard being had to differences between
codes of criminal law and procedure, crimes can best
be tried and punished at the place where they were
committed.
4. Extradition Treaties of the United States. The
United States has thus far negotiated thirty-four ex-
tradition treaties. The first was entered into in 1794,
and is comprised in Article 27 of Jay's Treaty with
England. It included the crimes of murder and forgery
only, and contained no stipulation as to the manner in
which persons, charged with either of these crimes,
were to be extradited. No legislation was had by
Congress for the purpose of carrying that part of the
treaty into effect, and, as it was not self-executing, it
was held to be legally inoperative, and expired by lim-
itation in 1806. I can find but a single instance in
which it was attempted to surrender a criminal in ac-
cordance with the extradition clause of this treaty.
One Jonathan Bobbins, who had participated in an
1 Boyd's Wheaton, pp. 165, 166.
EXTRADITION. 129
act of mutiny on board the British ship Hermione, in
1791, was arrested in Charleston in 1799. Judge Bee,
of the United States District Court, was notified by
the Secretary of State that a demand had been made
for his delivery as a fugitive criminal ; and that the
President advised, in the event of the evidence being
deemed sufficient to sustain the charge, that the pris-
oner be delivered to the British consul. Bobbins was
soon after brought before the District Court on a writ
of habeas corpus. A hearing was had and the privi-
lege of the writ was denied, the prisoner being surren-
dered to the British consul. Such a surrender was
clearly illegal and created great popular excitement.
Of the extradition treaties now in force, thirty-three
in number, twenty contain the provision that political
oifences are not extraditable, though none of them con-
tain a definition of the term. Nineteen contain a pro-
vision that citizens of the state upon which the de-
mand is made are not to be surrendered ; as citizens
are not excepted in the other treaties, the presumption
is that they would be surrendered upon due applica-
tion. Twenty-two of them contain a clause author-
izing the surrendering state to try and punish offences
against its own laws before giving effect to the extra-
dition process. In all of them it is expressly stipu-
lated that the sufficiency of evidence as to the com-
mission of the crime for which extradition is demand-
ed shall be determined by the laws of the state in
which the criminal has taken refuge.
5. Interstate Extradition. The subject of interstate
extradition in the United States is regulated by the
Federal Constitution, which provides that " a person
charged in any State with treason, felony, or other
9
130 OUTLINES OF INTERNATIONAL LAW.
crime, who shall flee from justice, and be found in
another state, shall, on demand of the executive au-
thority of the state from which he fled, be delivered
up, to be removed to the state having jurisdiction of
the crime." ' This provision covers only cases arising
within the territorial limits of the United States. The
power to surrender fugitives, who, having commit-
ted offences within the jurisdiction of & foreign state,
have fled to one of the United States for shelter, be-
longs, under the Constitution, exclusively to the United
States. 2 The practice of extradition between the states
of the Federal Union is carried on with nearly as much
strictness as is that between foreign nations, and in
accordance with similar rules. It has been decided,
however, by the Supreme Court of the United States
that the term " other crime," as used in the extradi-
tion clause of the Federal Constitution, refers to the
definition of the offense according to the law of the
state in which the crime was committed. In this re-
spect the rule of interstate extradition is opposed to
the international rule on the same subject. This should
be the case, as the systems of criminal law, of proof,
procedure, and punishment, in the several states of the
Union, are so nearly the same as to make the observ-
ance of the international rule unnecessary.
The same tribunal holds that "where demand is
made in due form, it is the duty of the executive on
whom the demand is made to respond to it, and he
has no moral right to refuse. Nevertheless, if he does
refuse, no power has been conferred on the Federal
courts to compel obedience, and the governors of states
1 Constitution of the United States, 2, art. 4.
8 Holmes vs. Jennison, Peters, vol. xiv., p. 540.
EXTRADITION.
have often refused compliance -with the demand, when,
in their opinion, substantial justice did not require it. 1
References. For the latest and most valuable discussion of the
important subject of Extradition, both international and inter-
state, see "Moore on Extradition," by J. B. Moore, formerly of the
Department of State, but now professor of International Law in
Columbia College ; see also Spear's " Law of Extradition ;" Hall,
"International Law," p. 48; Halleck, vol. L, chap, vii., 28-35;
Boyd's Wheaton, pp. 156-162, and pp. 645-650; Amos, "Science
of Law," p. 268 ; Kliiber, 60-66 ; G. F. De Martens, 99-102 ;
Heffter, 63, 63a ; Bar, p. 17, and pp. 623-737, and Teichmann,
" Les Dalits Politiques, le Regicide et 1'Extradition," in vol. xi. of
the " Revue de Droit International, " pp. 475-524.
1 Cooley, "Constitutional Law," p. 191 ; Kentucky vs. Dennison,
Howard, vol. xxiv., p. 66.
CHAPTER VI.
PEIVATE INTERNATIONAL LAW.
1. Relations of States and Individuals at Interna-
tional Law. It has been seen that " the relations of
states to one another are twofold in character. Either
the governments of the different states have relations
to each other, or the individual citizens of the differ-
ent states have relations to each other. The first class
of relations give occasion to what is called Public In-
ternational Law, and the latter to what is sometimes
called, with less precision, Private International Law." '
2. Definition. That branch of International Law
which treats of the relations of states with the citizens
or subjects of other states is called Private Interna-
tional Law or, as it is a question of determining
whether the courts of a state are to apply their own
municipal law, or that of another state, in the decision
of a given cause, it is sometimes called the Conflict of
Laws.
The Practice Based upon Comity or Consent.
From the definition of sovereignty it has been seen
that " the jurisdiction of a nation within its own terri-
tory is necessarily exclusive and absolute. It is sus-
ceptible of no limitations not imposed by itself. Any
restriction upon it deriving validity from any exter-
nal source would imply a diminution of the sovereignty
1 Amos, "Science of Law," p. 25.
PRIVATE INTERNATIONAL LAW. ^33
to the extent of the restriction, and an investment of
that sovereignty to the same extent in that power
which could impose such restriction." 1 The extent,
therefore, to Avhich the courts of one state may apply
the laws of another in the decision of cases, as it is
based upon comity or consent, must be determined by
the municipal law of the state in which the court sits.
It may be prohibited altogether, or may be permitted
subject to such restrictions as that state may see fit to
impose in accordance with its views of justice or ex-
pediency.
Origin of the Practice. The rules of Private Inter-
national Law "come into being through the moral
claim that is presented either by persons who, not be-
ing citizens of a given country, come into the courts
of justice of that country while sojourning there to
have rights recognized and protected which they have
acquired in their own country; or, by those who, be-
ing citizens of one country, but having acquired rights
while sojourning in other countries, come into the
courts of their own country to have those rights recog-
nized and protected.
" On every occasion for inventing rules applicable to
these cases the question is presented whether the courts
of justice of a country shall recognize rights acquired,
either by their own citizens or by foreigners, in other
countries ; or, in other words, whether the laws of oth-
er countries, giving validity to those rights, shall or
shall not be held to be effectual in the courts of justice
which are invited to interfere. The cases are generally
further complicated by the nature of the processes and
1 Case of the Exchange, Cranch, vol. vii., p. 116.
134: OUTLINES OF INTERNATIONAL LAW.
transactions out of which the asserted rights spring.
Part of the transactions may have taken place in one
country and part in another, and the remedy may be
sought for in a third. Or, the person seeking the rem-
edy, or against whom the remedy is sought, may be
the citizen of one country, have his permanent resi-
dence or domicile in another country, and be tempora-
rily sojourning in the country in which the remedy is
sought.
" It is obvious, from a mere enumeration and descrip-
tion of the cases which give rise to rules, that the pur-
pose of the existence of these rules is always the facil-
itation of intercourse between the citizens of different
states, and the prevention of practical injustice. These
objects must be served in the highest degree, if the
greatest possible uniformity of principle obtain, in the
courts of all nations, in creating and applying the rules.
In this way reasonable expectations are likely to be
best satisfied, and fraudulent invasions of the law of
any particular country are likely to be most effectually
prevented. It happens, however, that, owing to the
political jealousies that have hitherto kept apart the
most considerable nations of Europe, and to the fool-
ish prejudice with which individual nations have fos-
tered principles of law familiar in their own courts,
however alien to the practice of all other countries, there
have hitherto been made only very imperfect attempts
at uniformity, either of principle or practice, in this
respect. It is probable that an increasingly clear ap-
prehension of the logical relations of the different
branches of law touching ownership, contract, family
life, or crime, will produce the effect of assimilating
the substance, as well as the form, of the rules of law
PRIVATE INTERNATIONAL LAW. 135
forming the so-called Private International Law of dif-
ferent countries." '
As the practice of Private International Law is
based upon the comity of nations, it is obvious that
the modern science cannot, in its origin, antedate the
recognition of comity as a general international ob-
ligation. The remote origin of the practice, however,
is much more ancient, and can unquestionably be
traced to the Jus Gentium of the Romans, which was,
in substance, a formal recognition of the principles in-
volved in Private International Law by the greatest
state that has ever existed. The Roman Civil Law
applied to Roman citizens alone ; the Jus Gentium, or
Law of Nations, was made up of those principles of
law which were common to all the nations of which
they had any authentic knowledge. This system was
administered by the Roman courts during the exist-
ence of the empire, and was revived, by Grotius, more
than a thousand years after the downfall of the state
in which it had originated, for the purpose of furnish-
ing a logical and legal basis for the new science of In-
ternational Law.
The rules of domicile, which lie at the base of the
subject, were the first to receive attention, and to be
made the subject of judicial decision. This was espe-
cially true of their application by prize-courts in ascer-
taining the domicile of owners of captured vessels, with
a view to determining the nationality, and so the lia-
bility to capture and condemnation, of their property.
Aside from this, however, but little attention was paid
to the subject, as a matter of public law, until after the
1 Amos, " Science of Law," pp. 26, 27.
136 OUTLINES OF INTERNATIONAL LAW.
middle of the seventeenth century, when the rules re-
garding the treatment of aliens began to be relaxed in
severity, and the alien class began to demand protec-
tion in their personal and property rights. Its prog-
ress has not been rapid at any time, though an increased
interest in it has been manifested since the beginning
of the present century, and all states that are parties
to International Law now recognize its rules, and, to
a greater or less extent, permit their courts to apply
them in the decision of cases arising within their ju-
risdiction. Their practice is far from uniform, how-
ever, some states being slow to recognize their binding
force, while others constantly seek to extend their field
of operation, at times going so far as to negotiate
treaties for that purpose. The tendency of all modern
states is in the same direction, though some move more
rapidly than others.
3. Subjects Treated of in Private International Law.
The rules of Private International Law have chiefly
to do
(1.) With the legal status of aliens, and with their
capacity to do certain acts in a state, not in accordance
with its municipal law, but in accordance with the mu-
nicipal law of another state.
(2.) With questions arising as to the validity of for-
eign marriages or divorces.
(3.) With similar questions arising as to the validity
or binding force of contracts or agreements.
(4.) With questions connected with the ownership,
or transfer, of land and goods.
(5.) With foreign judgments and bankruptcies. 1
1 Amos, " Science of Law," p. 319.
PRIVATE INTERNATIONAL LAW. 137
Limitations upon the Practice of Private Interna-
tional Law. The courts of a state, in applying the
rules of Private International Law in any one of the
foregoing cases, cannot give effect to, or apply, a for-
eign law which is 'repugnant to the municipal law, or
moral standards, or public policy of their own state.
In accordance with this principle the following excep-
tions are stated by Wharton, in his " Conflict of Laws :" '
(1.) Distinctions of rank, or caste, have no extra-
territorial effect.
(2.) Laws destructive of capacity are disfavored in-
ternationally ; those protective of capacity are favored.
To the former class would belong laws recognizing
slavery, or imposing disabilities on account of relig-
ious belief.
(3.) Property, whether real or personal, is subject to
the lex rei sitce.
(4.) In all matters relating to a decedent's estate,
except as to realty, the law of the last domicile of the
decedent is to prevail.
(5.) Contracts, as a general rule, are to be governed
by the law of the place of performance. 2
(6.) Process, as a general rule, is to be governed by
the lex for i.
(7.) Persons are, in general, subject to the law of
their domicile ; " but, when visiting other lands, they
can only claim to be invested with the law of such
domicile to the extent which is consistent with the
common law of Christendom, which is the foundation
of Private International Law." Hence "a polyga-
mous or incestuous marriage, even though sanctioned
1 Wharton, ' ' Conflict of Laws," 19. a Ibid.
138 OUTLINES OF INTERNATIONAL LAW.
by a foreign state, and contracted within its borders,
has no exterritorial force. Foreign judgments of di-
vorce, to be respected, must be rendered by courts
having jurisdiction according to the judgments of Pri-
vate International Law. Foreign incapacity, arising
from minority or subjection to tutelage, will only be
recognized when there is something in the person so
subjected to put persons dealing with him on inquiry." '
Effect of Foreign Judgments. A foreign judgment
is one obtained in the courts of a foreign state, the
recognition and enforcement of which is asked in the
courts of the state in which the defendant is resident,
or subject to legal process. The great majority of
states give effect to a foreign judgment in all cases in
which the following conditions have been fulfilled :
(1.) The tribunal which pronounced the judgment
must have been competent, according to the law of
the state to which it belonged, to decide upon the
matter adjudicated upon.
(2.) The jurisdiction must have been complete both
as to subject-matter and over the parties to the suit.
(3.) The foreigner who was a party must have been
fairly heard before the tribunal, according to the laws
of the state, and on an equality, in every respect, in-
cluding the right of appeal, with a native subject.
(4.) The tribunal must have decided upon the very
subject-matter which it is attempted to litigate upon,
and the decision must have been final, or made by
the court of last resort.
Condition of Reciprocity. To these conditions
some nations add another, that of reciprocity. If these
1 Wliarton, " Conflict of Laws," 19.
PRIVATE INTERNATIONAL LAW. 139
conditions are fulfilled they will constitute a valid
ground upon which, to base a plea in bar of a second
litigation, and, if properly authenticated, the foreign
judgment will be executed by them as if it were their
own. 1
Foreign Judgments, why Produced before the Courts
of a State. Whenever a foreign judgment is brought
to the judicial notice of the courts of a state it is with
a view of obtaining one of two results :
(1.) " It may be pleaded in bar.
(2.) " It may be given effect to, and executed in the
same manner as a domestic judgment." a
Conditions under which they are Given Effect.
In accordance with the practice of most states of
Christendom, foreign judgments are permitted to have
effect only in the following cases :
(1.) With the consent of the state in which execu-
tion is desired.
(2.) By the authority and order of its tribunals.
(3.) When it contains no provisions or order contra-
ry to the public morals or policy of the state in which
execution of it is sought. 3
Practice of States in the Matter of Foreign Judg-
ments. Although there is considerable variance in the
policy of states as to the effect given in each to for-
eign judgments, most of them are susceptible of clas-
sification under one of three heads :
(1.) " Those which recognize the rule of reciprocity.
(2.) " Those which refuse to recognize foreign judg-
ments.
1 Phillimore, vol. iv., pp. 729, 730.
* Ibid., p. 729; De Martens, liv. iii., 94.
1 Phillimore, vol. iv., p. 728.
140 OUTLINES OF INTERNATIONAL LAW.
(3.) " Those, like England and the United States,
which recognize them even without reciprocity." '
References. The admirable treatises of Wharton and Story upon
the subject of "Private International Law," or the "Conflict of
Laws," both works of the highest authority, practically exhaust
the subject in all its departments. Bar's "International Law" is
a standard German work upon the subject, and may now be ob-
tained in an English translation. Fcelix, "Traite de Droit In-
ternational Prive" " is a French work of high authority. The fourth
volume of Phillimore is devoted to the subject of Domicile and
Private International Law. For briefer and less elaborate ac-
counts, see Boyd's Wheaton, 78-92; Halleck, vol. i., chap. vii. ;
and Brocher's "Theorie du Droit International Privfi," in vols. iv.,
v., of the Revue de Droit International.
1 PMllimore, vol. iv., pp. 731, 733.
CHAPTER YIL
THE EIGHT OF LEGATION.
1. Origin of the Right. The right of legation is one of
the oldest, as it is one of the most generally sanctioned
of international usages. It has existed from the ear-
liest times, and among all peoples of whom we have
any authentic knowledge. It is recognized and prac-
ticed to some extent even by barbarous nations in
their occasional intercourse with each other.
, As nations cannot treat directly with each other, it
follows that intercourse between them must be carried
on by means of agents or intermediaries ; these agents
are called ambassadors.
The practice of maintaining public ambassadors at
foreign courts, though recognized to some extent in
Europe at an earlier date, did not become general un-
til about the middle of the seventeenth century. The
treaty of Westphalia, which was concluded in 1648,
marked an important epoch in European history. As
an immediate result of its execution the influence of
the Roman Church in secular matters was largely re-
duced in importance, and the principle of balance of
power was, for the first time, generally sanctioned and
specially guaranteed. As a consequence the foreign
relations of the different European states rapidly in-
creased in volume and intricacy, and the necessity of
establishing permanent legations was generally recog-
nized and acted upon. The profession of diplomacy
142 OUTLINES OF INTERNATIONAL LAW.
soon became the most important one in which an in-
dividual could engage, and the departments of foreign
affairs were regarded as the most important branches
of governmental service, demanding in their adminis-
tration ministers of the highest ability and the widest
experience. The position assumed by the profession
has been constantly maintained, and the states of Eu-
rope and America now deem it a matter of the first
consequence to be ably represented, not only near the
courts of the Christian states, but also at the capitals
of those Eastern nations which, as yet, but imperfectly
recognize the sanctions of International Law.
The Right of Legation. The right of sending and
receiving ambassadors is one of the essential attributes
of a sovereign state. The obligation to do so is less
strong, and is not generally regarded as a matter of
strict right. A nation, however, which refuses, with-
out good reason, to receive a minister from a foreign
power exposes itself to retorsion ; and a state would
run counter to the tendencies of modern civilization
which rejected, or refused to receive, communications
from a state with which it was at peace. 1
The power of sending and receiving ambassadors
belongs also to dependent states, unless its exercise is
expressly forbidden by the states upon which they are
dependent. In the case of confederacies the right be-
longs to each of the component states, unless it has
been expressly surrendered by them in the treaty of
confederation.
A state, though willing to receive an ambassador
from another, may, for good reason, decline to receive
' Heffter, p. 377.
THE RIGHT OF LEGATION. 143
a particular person in that capacity. It may thus de-
cline to receive one of its own subjects, or a former
subject who had been exiled or who had gone into
voluntary exile, or a person of doubtful or immoral
character, or one who had been engaged in a conspira-
cy or agitation directed against the government to
which he is accredited as an ambassador. " A state
may also decline to receive ministers whose powers
are incompatible with its constitution or public policy.
For this reason no state is obliged to receive as minis-
ter the legates or nuncios of the pope. Their powers
are conferred, either expressly or tacitly, by ecclesias-
tical laws, and an attempt to enforce them may bring
the papal representative into collision with the sover-
eign authority of the state upon some question of a
religious character." '
It has already been explained that the government
of a state is the organ through which it communi-
cates with other powers. In such intercourse with
other states a government may communicate direct-
ly, through its ministry of foreign affairs, or through
ambassadors selected by the proper governmental
authority in accordance with its constitution and
laws.
2. Classification of Diplomatic Agents. Heffter
makes the following classification of these agents of
intercourse.
(.) Public ministers. These are clothed with a pub-
lic and official character, and are sent by the sovereign
authority of <i state to a foreign government, as its
general diplomatic representatives, or to undertake
1 Heffter, p. 377.
144 OUTLINES OF INTERNATIONAL LAW.
special negotiations. They may have either a perma-
nent or temporary character.
(J.) Diplomatic agents, charged with similar duties,
but without public or official character.
(<?.) Commissioners, appointed for special purposes,
as to locate and mark boundaries, to adjust interna-
tional differences, or to carry into effect special clauses
of treaties. The members of this class do not com-
municate directly either with a foreign sovereign or
with his ministers. 1
8. Itaiik of Ambassadors. The absence of a well-de-
fined rule by which to determine questions arising as
to the powers and dignities of the different classes of
diplomatic agents gave rise to great confusion, especial-
ly at the beginning of the present century. To remedy
this the representatives of the European powers as-
sembled in Congress at Vienna, in 1815, agreed upon
a classification of public ministers, and recommended
the preparation and adoption, in each state, of rules
to regulate their precedence. The arrangement pro-
posed at Vienna, 2 as modified by the action of the
Congress of Aix-la-Chapelle/ in 1818, has received such
general sanction as to entitle it to consideration as
a rule of International Law. In accordance with its
provisions diplomatic agents are now arranged into
four classes :
, (.) Ambassadors, ordinary and extraordinary, leg-
ates and nuncios.
(5.) Envoys, ministers, or other diplomatic agents
accredited to sovereigns.
(c.) Ministers resident, accredited to sovereigns.
' Heff ter, p. 378. a Ibid. 3 Ibid.
THE RIGHT OF LEGATION. 145
(d.) Charges (T Affaires, and other diplomatic agents
accredited to ministers of foreign affairs (whether
bearing the title of minister or not), and consuls
charged with diplomatic duties. 1
Ambassadors of the first class are alone clothed with
the representative character; they have special pre-
rogatives, and are entitled to special honors, as they
represent the sovereign in his personal character.
Members of the other classes represent his affairs only.
In general the immunities to which ministers are en-
titled depend upon their letters of credence. Those
accredited to sovereigns are entitled to the immunities
of ambassadors, those accredited to ministers of for-
eign affairs are not.
4. Titles of Ambassadors. The titles of ambassa-
dors are regulated by the municipal laws of the states
which they represent. The terms ordinary and ex-
traordinary at first determined the character of the
diplomatic employment of the ministers to whom they
were applied. They have now no special meaning.
Legates and nuncios are the representatives of the
pope at foreign courts. Legates have the rank of
cardinal, and represent, to a certain extent, his spirit-
ual as well as his temporal authority. ^Nuncios repre-
sent him in the latter capacity only. In determining
the rank and titles of ministers sent to foreign courts,
the principle of reciprocity prevails, and a state sends
to another a representative of the same class that it
receives. Several ministers may be maintained at the
same court, and a single person may represent a state
at several courts.
1 Heffter, p. 388.
10
146 OUTLINES OF INTERNATIONAL LAW.
5. Manner of Sending and Receiving Ambassadors.
To enable a minister to be received in that charac-
ter, he is provided by the sovereign or other chief ex-
ecutive authority of his own state with two important
papers, called his Letter of Credence and Full Power.
The Letter of Credence is addressed to the sovereign
to w T hom he is accredited. It contains his name and
title, confers upon him the diplomatic character, and
serves to identify him as a public minister, but does
not authorize him to enter upon any particular nego-
tiation. The Full Power authorizes him to act as the
general diplomatic representative of his government
at the court to which he is accredited. It describes
the limits of his authority to negotiate, if such there
be, and upon it the validity of his acts as a minister
largely depends. Ambassadors who represent states
at Congresses and Conferences, or as members of In-
ternational Courts, or Boards of Arbitration, are not
usually provided with Letters of Credence. They bear
Full Powers, under the authority of which they act,
and copies of them are exchanged among the differ-
ent members of the board or conference. 1
Reception of Ambassadors. An ambassador or min-
ister accredited to a sovereign, upon arriving at his
station, forwards a copy of his Letter of Credence to
the Minister of Foreign Affairs, and requests an audi-
ence with the sovereign. At this audience, which may
be either public or private, his Letter of Credence is
presented, and complimentary speeches are usually ex-
changed. He may then enter upon the performance
of his duties.
J De Martens, vol. i., pp. 84, 86.
THE RIGHT OF LEGATION.
6. Duties of Ambassadors. The duties of a public
minister are not susceptible of exact description. Some
of them are regulated by International Law, and some
by the municipal law of the ambassador's state. They
depend upon the importance of the power to which
he is accredited, upon the amount of intercourse, com-
mercial and otherwise, existing between it and the
state which he represents, and, to some extent, upon
the difference in their systems of government. He
is expected to keep his government informed upon all
questions of general interest, and to advise it of any
change in the government, constitution, or state pol-
icy of the country in which he is resident. It is also
his duty to make proper representations in behalf of
subjects of his own state who may stand in need of
protection, to secure a remedy for injuries which they
may have received, or, in case they exceed his jurisdic-
tion, to inform his government fully of the facts in
each case in order that proper measures of redress
may be taken. In general he represents the interests
of his state, and those of its individual subjects, in
the country to which he is accredited. That he may
do so effectively at all times, and under all circum-
stances, he is bound by every consideration of honor
and duty to scrupulously abstain from all interference
in the internal affairs of the state to which he is ac-
credited.
7. Diplomatic Language. Every state has a right
to employ its own language in its communications to
other powers, and must recognize a corresponding
right, on the part of other states, to a similar use in all
communications addressed to itself. Until the begin-
ning of the eighteenth century Latin was in general
148 OUTLINES OF INTERNATIONAL LAW.
use as a convenient neutral language. The treaties of
Mmeguen, Byswick, and Utrecht, and the Quadruple
Alliance, concluded at London in 1T88, 1 were drawn
up in Latin. The official acts of the Holy See are
still written in that language. French, however, has
gradually displaced Latin as the diplomatic language,
and, to a great extent, still retains that character. The
treaties of Vienna, in 1815, those of 1833, concerning
the separation of Belgium from Holland, and the treaty
of Paris, in 1856, were drawn up in French.
8. The Functions of Ambassadors, how Suspended and
Terminated. The functions of an ambassador, and
consequently his official character, may be suspend-
ed, and may, or may not, be terminated
(a.} As a result of some difference or misunderstand-
ing between the two powers, not resulting in war.
(5.) Upon the occurrence of important political
events, which render the continuance of his mission
improbable ; as a sudden or violent change in the con-
stitution or form of government, in either state. Such
a suspension continues until it is removed, by proper
authority, in the state in which it originated.
A mission may be terminated
(.) By the death, or by the voluntary or constrained
abdication of one or both sovereigns. This, however,
only in case the ambassador represents the sovereign
in his personal capacity. 2
(.) By the withdrawal, or cancellation, of his Letters
of Credence and Full Power.
(<?.) By his recall at the outbreak of war ; or upon
the completion of the duty which he was appointed to
1 Heffter, p. 433. a Ibid., p. 414.
THE RIGHT OF LEGATION.
perform, the expiration of his term of office, or upon
his promotion or removal to another sphere of duty.
(d.) By his removal, which may be voluntary, or
forced by the government to which he is sent.
(<?.) By death. 1
When the functions of an ambassador cease for any
cause his departure is attended by formalities sim-
ilar to those observed at his reception. He requests
an audience with the sovereign, at which he presents
his letters of recall. If normal relations exist between
the two governments, formal expressions of regret are
exchanged at this interview. In strictness his functions
and privileges cease when his letter of recall has been
presented. Through courtesy, however, the immuni-
ties which he has enjoyed during his period of resi-
dence are extended to him until he passes the frontier
of the state on his homeward journey.
9. The Privileges and Immunities of Ambassadors.
To the successful and efficient performance of an
ambassador's duties the most complete personal inde-
pendence and freedom of action are necessary. This
immunity lies at the foundation of the system, and
has been most jealously guarded and preserved since
the beginning of modern diplomacy. It was recog-
nized by the nations of antiquity, and is insisted upon
as a necessary preliminary to intercourse with those
Eastern countries whose standards of civilization differ
so widely from our own. It is illustrated by the swift-
ness with which nations have always resented offences
against the persons of their ministers and diplomatic
agents.
1 De Martens, vol. ii., p. 160.
150 OUTLINES OF INTERNATIONAL LAW.
10. The Principle or fiction of Exterritoriality. -
From the fact of the inviolability of an ambassador's
person, ihe fiction of exterritoriality lias been deduced
to account for and explain the various exemptions
which public ministers enjoy in foreign countries.
This principle has been denned, and its limitations
have been pointed out, elsewhere.
This immunity is both personal and territorial. Per-
sonal in that it involves an exemption of his person
from the civil and criminal jurisdiction of the state in
which he is resident ; territorial in that his residence
or hotel is presumed to be a part of the territory of
the state which he represents. In strictness his privi-
leges and immunities become effective when he enters
upon the performance of his diplomatic duties. It is
usual, however, to recognize them as existing so soon
as he enters the territory of the state to which he is
accredited. The exemption which an ambassador en-
joys extends to his famity, to the secretaries and other
attaches and employees of the legation, and to his do-
mestic servants. Some question has arisen as to the
precise extent of this immunity in the case of servants,
especially when they are natives of the country in
which the minister is resident. Unquestionably any
privilege which a servant may have " is not the privi-
lege of the servant himself, but of the ambassador, and
is based on the ground that the arrest of the servant
might interfere with the comfort or state of the am-
bassador." 1
Immunity from Criminal Jurisdiction. As respects
criminal jurisdiction, an ambassador is exempt from
1 Phillimore, vol. ii., p. 145.
THE EIGHT OF LEGATION.
criminal prosecution, of every sort, during the entire
period of his residence at a foreign court. A crime
committed against the person of an ambassador, except
in the way of self-defence, is given an aggravated
character, and is punished with exceptional severity
by the municipal laws of every state. The only excep-
tion to the immunity which a minister enjoys in this
respect would arise from his own misconduct. For
any minor violation of propriety the government to
which he is accredited may signify its displeasure,
either privately to the minister himself, or to his gov-
ernment in the diplomatic way. For a more serious
offence, amounting to crime, his recall may be demand-
ed. If the request be not acceded to, he may be sum-
marily dismissed, or notified to quit the territory of
the offended state. For crime of an aggravated sort,
amounting to treason, or a treasonable conspiracy
against the government, he is deemed to have forfeit-
ed his immunity, and may be forcibly expelled ; but he
may never be subjected to criminal prosecution in the
state in which he resides in the character of ambassador.
Immunity from Civil Jurisdiction. A similar im-
munity from civil jurisdiction is sanctioned by the
general usage of nations. An ambassador, in his pub-
lic character, is exempt from the service of process,
and suits against him can only be brought in the courts
of his own country. His furniture, and other movable
property, are exempt from taxation, and from seizure
in execution of judgment. This immunity, however,
only attaches to him in his diplomatic capacity. It
does not extend to any other interests he may have in
the state in which he is resident ; and, as a merchant,
trustee, or executor, his property is subject to the local
152 OUTLINES OF INTERNATIONAL LAW.
law. If he waives his diplomatic privilege, and sub-
mits himself to the jurisdiction of the local courts by
appearing in them as a party to a cause, he must abide
by their decision. It has been held, however, that a
judgment against him can only be satisfied out of
property held by him in his private capacity.
Immunity of an Ambassador's Hotel. If the prin-
ciple of exterritoriality were of invariable application,
it would follow that, since his house and premises are
held to be part of the territory of the state which he
represents, his jurisdiction over them would be com-
plete and exclusive as regards the authority of the
government to which he is accredited. This is not the
case, however. If a crime be committed by a person
of his suite against a foreigner, the offender may be
arrested or detained by the minister, and held subject
to the extradition process, or sent home for trial ; or,
with the consent of the minister's government, he may
be surrendered for trial in the local courts. A crime
committed by one person of his suite against another
is justiciable only in the courts of the minister's coun-
try. Nor can an ambassador's house be made an asy-
lum for criminals. The surrender of an offender who
takes refuge there may be demanded, and if denied he
may be forcibly removed. The privilege of an am-
bassador is thus seen to be, to a certain extent, nega-
tive in character. The law of nations secures to him
such personal immunity as is necessary to the proper
and adequate performance of his duties. It also guar-
antees to him such honors and privileges as befit the
representative of a sovereign state. But no such priv-
ilege or immunity attaches to him when committing
a crime or doing a wrongful act, and he may be re-
THE RIGHT OF LEGATION. 153
strained, if need be by force, if he attempts to commit
a crime against the person or property of another. In
the exercise of the right of self-defence he may be re-
sisted, and wounded, or even killed, by the person whom
he has assaulted, and this without giving cause of com-
plaint to the government which employs him.
While the immunities accorded to public minis-
ters are of the most extensive and important character,
amounting, in fact, to an almost complete exemption
from the operation of the local laws, it does not follow
that they are exempt from all legal responsibility, or
that there are no courts which have jurisdiction over
them. They are in all respects amenable to the juris-
diction of the courts of their own country, and before
those courts they may be required to appear as parties
defendant in causes of a civil or criminal character.
Privilege of Religious Worship. The privilege of
religious worship according to a prohibited form, or
one different from that prevailing in the country to
which an ambassador is accredited, is now generally
accorded, subject to certain restrictions as to publicity.
Increasing tolerance, however, in all matters of religious
opinion has detracted somewhat from the advantage of
the concession, as it has deprived the restrictions of
much of their former significance and force. A certain
jurisdiction is also conceded to ministers in the per-
formance of certain legal acts in behalf of their fellow-
subjects, such as formalizing and registering marriages,
births, and deaths, and other acts of like character.
Exemption from Customs Dues, etc. Foreign minis-
ters are usually exempted from the payment of customs
duties upon articles imported by them, and intended
for their personal use. Such articles are subject to the
154 OUTLINES OF INTERNATIONAL LAW.
usual inspection, and precautions calculated to prevent
an abuse of the privilege are justifiable. To avoid such
abuses some states permit a certain amount to be im-
ported free of duty, and collect the usual dues upon
articles imported in excess of the authorized amount
or value. The privilege of an ambassador does not ex-
empt him from the observance of the police and sanitary
regulations of the city in which his official residence is
situated. For a violation of such ordinances, however,
he can only be proceeded against in the diplomatic way.
Nor does his privilege exempt him from the payment
of tolls, or of postage upon such of his correspondence
as may be intrusted to the ordinary mails for delivery.
11. Consuls. Consuls are persons appointed by the
government of a state to represent its commercial in-
terests, and those of its subjects, in the principal ports
of other nations.
The practice of maintaining consular representatives
in foreign ports and commercial cities dates back to
the very beginning of modern commerce. It was de-
veloped among the commercial cities of the Mediter-
ranean, and grew out of the exigencies and necessities
of their intercourse with the Levantine cities, whose
forms of government and law were radically different
from their own. " The ships of foreign merchants were
held to be navigated under the jurisdiction of the na-
tion whose flag they carried; and the general prac-
tice was for vessels engaged in long sea voyages, some
of which occupied a period of not less than three years,
to have on board a magistrate, whose duty it was to
administer the law of the country of the flag among
all on board, not merely while the vessel was on the
high seas, but while she was in a foreign port, loading
THE RIGHT OF LEGATION. 155
or unloading cargo. This magistrate was termed the
alderman in the ports of the North and Baltic seas,
while in the Mediterranean ports he was designated
by the familiar name of consul, and was the precursor
of the resident commercial consul, who continues in
the present day to exercise within merchant ships of
his own nationality, notwithstanding they are within
the territorial jurisdiction of another state, a portion
of the personal jurisdiction formerly exercised by the
ship's consul. The exercise of this consular jurisdic-
tion requires no fiction of exterritoriality to support it.
Its limits are either regulated by commercial treaties,
or, where it has originated in charter privileges, it is
now held to rest upon custom." '
The institution had become fully established, in
much J;he same form as it now exists, by the end of
the twelfth century, at which time Venice was repre-
sented in the East by consuls at Constantinople, Aleppo,
Jerusalem, and Alexandria. -The Eastern Empire main-
tained a consul at Marseilles, and foreign consulates
had long been established and recognized at the port
of Barcelona, in Spain. These early consuls performed
many of the duties of modern ambassadors, and had
something of their inviolable character. As a result
of the general establishment of permanent missions in
Europe in the seventeenth century, an important change
was made in the consular function in all the states of
the West. The diplomatic duties were transferred to
the class of public ministers, to whom the character of
inviolability was attached ; and there remained to the
consuls a class of duties of a commercial character.
1 Article by Sir Travers Twiss, (English) Law Magazine, Feb. 1876.
156 OUTLINES OF INTERNATIONAL LAW.
closely resembling those which they now perform. In
the Levant, however, where no permanent missions were
established, consuls continued to enjoy their old powers
and privileges. These, to a great extent, they still retain.
The Duties of Consuls. It is their duty to watch
over the commercial interests of their nation, to super-
vise the execution of commercial treaties, and to assist,
by interference and counsel, such of their fellow-citi-
zens as may be sojourning, either permanently or tem-
porarily, at the place of their official residence. They
are authorized to adjust disputes arising on board ves-
sels of their own nation, to hear and act upon com-
plaints of members of their crews, to issue and coun-
tersign passports to their fellow-citizens, to authenticate
the judgments of foreign courts by their consular seal,
and, if the local laws permit, to act as administrators
upon the estates of decedents of their own nationality.
They are also authorized to register births, marriages,
and deaths, and may solemnize marriages when the
contracting parties are of the same nationality as
themselves, unless forbidden to do so by the municipal
law of their own states, or that of the state in which
they officially reside. They are permitted to exercise
a certain voluntary jurisdiction over their fellow-citi-
zens in cases with which the local law has no concern ;
" but no contentious jurisdiction can be exercised over
their fellow-countrymen without the express permis-
sion of the state in which they reside, and no Christian
state has, as yet, permitted the criminal jurisdiction of
foreign consuls." ' They are presumed to be entitled
to all the powers and privileges that their predecessors
1 Philliinore, vol. ii., p. 170.
THE RIGHT OF LEGATION.
have enjoyed, and may properly claim any right exer-
cised by a consul of another nation, unless such right
is based upon treaty stipulations.
12. Classification of Consuls, and Method of Appoint-
ment. They are usually classified into consuls-general,
consuls, vice-consuls, and consular agents, and each
state, by its municipal law, determines the manner of
appointment, the tenure of office, and the special duties
of its consular representatives in foreign ports. In this
way a state may confer upon its consuls such power
and jurisdiction as it wishes them to exercise, provided
such exercise of jurisdiction is sanctioned by the usage
of nations, or has been conceded by treaty. In the
Christian states of Europe and America consuls have
none of the privileges and immunities of ambassadors.
In the Levant, however, in many Asiatic and African
ports, and in the islands of the sea, they perform the
duties and are entitled to the exemptions of public
ministers.
13. Privileges of Consuls. Consuls enjoy certain
privileges which are sanctioned by International Law.
They are exempt from personal imposts and the per-
formance of personal services, from the quartering of
troops, and, in general, from such restrictions as are
calculated to interfere with the efficient performance
of their consular duties. They are usually permitted
to place their national flags and coats-of-arms over
their offices, and in most states their archives are re-
garded as inviolable.
They may engage in business, if the municipal law
of their own country permits them to do so, and may
be prohibited from so doing by the same authority.
They are in all respects amenable to the civil and
158 OUTLINES OF INTERNATIONAL LAW.
criminal jurisdiction of the state in which they are
resident. They may sue and be sued in its courts ;
they are in every way subject to process, and judg-
ments against them may be satisfied out of their prop-
erty. Halleck holds that they may be punished for
their criminal offences by the laws of the state in
which they reside, or sent back to their own country
for trial, at the discretion of the government which
they have offended. A distinction is made, however,
between personal offences and official acts done under
the authority, or by the direction, of their own gov-
ernments. The latter are matters for diplomatic ar-
rangement between the respective states, and are not
justiciable by the local courts. 1 Consuls are subject to
taxation and to the payment of customs dues. Their
place of residence is regarded as their domicile to the
extent that, in time of war, their goods on the high
seas are subject to seizure if their domicile gives them
the hostile character.
14. By whom Appointed. Consuls are appointed by
the sovereign, or chief executive authority of the state
which they represent, subject to such restrictions in
the matter of citizenship, character, and qualifications
as are determined by its municipal laws. They are
provided with commissions, or letters of appointment,
which are submitted, through their ministers, to the
Department of Foreign Affairs of the state in which
they are to perform consular duty. If that govern-
ment consents to recognize them in the capacity of
consuls, an exequatur is issued, upon the receipt of
which they are authorized to enter upon the perform-
1 Halleck, vol. i., p. 313.
THE RIGHT OF LEGATION. 159
ance of their duties. For misconduct or crime, or for
excess of jurisdiction, the exequatur may be withdrawn
or revoked at any time ; and if this action be taken for
just and sufficient cause, the government of the state
to which the consul belongs will have no reasonable
ground of complaint. This procedure is by no means
uncommon. In October, 1793, the exequatur of the
French consul at Boston was withdrawn for having
taken part in an attempt to rescue a vessel out of the
hands of the United States marshal, which had been
brought in as a French prize, but upon which process
had been served at the suit of the British consul, who
claimed that she had been illegally captured in the
neutral waters of the United States. 1 Another and
more remarkable case occurred in 1861. In" order to
protect British commerce, Her Majesty's Government
was desirous that the Confederates should observe the
last three articles of the Declaration of Paris, and ac-
cordingly Mr. Bunch, the British consul at Charleston,
S. C., was instructed to communicate this desire to the
Confederate authorities. The United States thereupon
demanded that Mr. Bunch should be removed from his
office, on the ground that the law of the United States
forbade any person, not specially appointed, from coun-
selling, advising, or interfering in any political corre-
spondence with the government of any foreign state
in relation to any disputes or controversies with the
United States, and that Mr. Bunch ought to have
known of this law, and to have communicated it to
his government before obeying their instructions. It
was also urged that the proper agents to make known
1 Hildreth, "History of the United States," vol. iv., p. 437.
160 OUTLINES OF INTERNATIONAL LAW.
the wishes of a foreign government were its diplomatic,
and not its consular, officers. On these grounds Mr.
Bunch's exequatur was withdrawn. 1
15. Manner of Appointment in the United States.
The members of the United States Consular Establish-
ment are arranged into three principal classes consuls-
general, consuls, and commercial agents. 2 They are
appointed by the President with the consent of the
Senate. They receive fixed salaries, augmented in cer-
tain cases by fees, and those whose salaries exceed one
thousand dollars per annum are forbidden to engage
in trade. Consular positions of the highest class can
only be filled by citizens of the United States. Their
general duties are ascertained and fixed by law. They
are required to act in behalf of owners of stranded ves-
sels, 3 to receive from the masters of American vessels,
upon their arrival in port, their registers, sea letters,
and Mediterranean passports, and to return them when
a proper clearance has been obtained, by such masters,
from the port authorities. 4 They are required to make
reclamation of deserters from merchant vessels, and,
when treaty stipulations authorize it, to demand from
the local authorities such assistance as they may need
to effect their capture and return. 5 They are also re-
quired to certify invoices of merchandise which it is
proposed to import into the United States, and to re-
1 Boyd's Wheaton, p. 305; "United States Diplomatic Correspond-
ence," 1862, p. 1.
2 Halleck, vol. i., pp. 315, 316, gives a full list of the legal and act-
ing titles of United States consuls. For fuller information as to their
powers and duties, see the official "Regulations Prescribed for the
Consular Service of the United States," Washington, Oct. 1, 1870.
3 " Revised Statutes of the United States," 4238.
4 Ibid. , %% 4559, 4586. 5 Ibid. , 4598-4600.
THE RIGHT OF LEGATION.
quire satisfactory evidence, by oath if need be, of their
correctness. 1 They are to keep lists of seamen shipped
and discharged by them, and of vessels arrived and
cleared, with an account of the nature and value of
their cargoes. 3 They are to care for destitute seamen,
and to cause the same to be transported to the United
States, 3 and are to procure and transmit to the State
Department such authentic commercial information
respecting the country in which they reside as may be
required by the head of that department. 4 They are
authorized to solemnize marriages between persons
who would be permitted by law to marry if resident
in the District of Columbia, 5 and may take possession,
in certain cases, of the personal estates of any citizen
of the United States who may die within their con-
sular jurisdiction leaving no legal representatives.
They may sell such of this property as is of a perish-
able nature to pay debts due from the estate, transmit-
ting the residue to the treasury of the United States.'
The President is empowered to define the territorial
limits of the different consulates, and to make all need-
ful regulations for the consular service.
16. Consular Jurisdiction. In certain Eastern coun-
tries, whose standards of law and morals differ mate-
rially from our own, an extensive jurisdiction, both
civil and criminal, is exercised by the consuls of the
principal Western powers. It was obtained in the first
instance by treaty stipulation, and by later treaties has
been modified and extended, from time to time, as the
exigencies of commercial intercourse made such changes
1 "Revised Statutes of the United States," 2862. 8 Ibid., 1708.
3 Jbid.,$4577. * Ibid., 1711. * Ibid., % 4082. Ibid., 1709.
11
162 OUTLINES OF INTEKNATIONAL LAW.
either necessary or desirable. The effect has been to
withdraw foreigners almost completely from the oper-
ation of the local laws, and to subject them to the
jurisdiction of the consuls of their respective states.
The extent of this jurisdiction is defined by treaties
with the Christian powers. These treaties are carried
into effect by the municipal laws of the signatory
states, which determine, within the limits of the treaty
concession, the extent and character of the consular
jurisdiction. " This jurisdiction is subject, in civil
cases, to an appeal to the superior tribunals of their
own country. The criminal jurisdiction is usually
limited to the infliction of pecuniary penalties, and, in
offences of a higher grade, the consular functions are
similar to those of a police magistrate, orjuge cPinstruc*.
tion. He collects the documentary and other proofs,
and sends them, together with the prisoner, home to
his own country for trial." l Such jurisdiction was
obtained for consuls of the United States by treaties
made at different times with Turkey, China, and Japan,
and with Siam and Madagascar. Suitable laws have
been passed by Congress to give effect to their pro-
visions. By the Act of July 1, 18TO, the operation of
the statute was extended " to any country of like char-
acter with which the United States may hereafter en-
ter into treaty relations." a The jurisdiction conferred
upon United States ministers and consuls by the Act
of June 22, 1860, is both civil and criminal, but is re-
1 Boyd's Wheaton, p. 152; Boyd, " The Merchant Shipping Laws,"
index, title, "Consular Offices;" Pardessus, " Droit Commercial,"
pt. vi., tit. 6, chap, ii., 2; chap, iv., 1, 2, 3; De Steck, "Essai sur
les Consuls," 7, par. 30-40.
3 Act of July 1, 1870, extending Act of June 22, 1860.
THE RIGHT OF LEGATION.
stricted in its exercise to citizens of the United States.
Consuls are authorized to hear, and finally decide, civil
causes in which the amount involved, exclusive of
costs, does not exceed five hundred dollars. When the
amount exceeds that sum, or in his opinion the case
involves legal perplexities, the consul is authorized to
summon not less than two, nor more than three, citi-
zens of the United States, who are to be selected, by
lot, from a list previously submitted to the minister
and approved by him. If the consul and his advisers
concur in opinion, their decision is final. If they fail
to agree, or if the amount at issue exceeds five hundred
dollars, either party may appeal to the minister. In
China and Japan the decision of the minister is final
in all suits when the amount at issue does not exceed
two thousand five hundred dollars. Cases involving a
greater amount may be appealed to the United States
Circuit Court for the district of California, whose de-
cision in the case is final.
Consuls are also authorized to hear and decide crim-
inal cases, and, in the event of conviction, to impose
penalties of not more than ninety days' imprisonment,
or a fine not exceeding five hundred dollars. In cases
not involving a higher penalty than one hundred dol-
lars' fine, or sixty days' imprisonment, their decision is
final. Whenever the consul is of opinion that an im-
portant question of law is involved in the decision of
a case, or deems a greater punishment necessary than
he is authorized to inflict, he may summon as advisers,
in cases not capital, not less than one, nor more than
four, American citizens to assist him in his decision.
In cases involving capital punishment not less than
four such assistants must be summoned. In the event
164: OUTLINES OF INTERNATIONAL LAW.
of disagreement the case, with, evidence and opinions,
is forwarded to the minister for decision. His decision
is final, except in cases arising in China and Japan,
from which an appeal may be taken, as in civil cases,
to the United States Circuit Court in California. The
jurisdiction of the minister is appellate, except in capi-
tal cases, or when the consul is a party ; and, finally,
ministers and consuls are enjoined to exert all their
official influence to induce litigant parties to adjust
their differences by arbitration. 1
A somewhat similar jurisdiction is exercised by the
British consuls in the East.
References. Most existing works upon the subject of diplomacy
are of foreign origin. Many of them either appeared originally in
French, or are accessible in French translations. The most impor-
tant of these are, for the period before Grotius, Nys, " Origines
de la Diplomatic," and, for its later history and practice, Ch. de
Martens, " Le Guide Diplomatique," and " Causes C61ebres du Droit
des Gens " (1827), and the " Nouvelles Causes CSlebres," published
by the same author in 1844. See also the "Trait6 Complet de
Diplomatic," par un Ancien Miuistre; Schuyler, " American Diplo-
macy ;" and the " Rights and Duties of Diplomatic Agents," by E.
C. Grenville-Murray. The following works upon the functions and
duties of consuls may be consulted with advantage : " Dictionnaire
ou Manuel Lexique du Diplomate et du Consul," by Baron F. de
Cussy ; Miltitz, " Manuel des Consuls ;" Neumann, " Handbuch des
Consulatswesens ;" and Henshaw's and Warden's works on the
duties of consuls. As the exercise of consular jurisdiction is based
upon treaty stipulations, it is necessary, in conducting inquiries
upon this subject, to consult the treaties themselves. For this
purpose, see the collections referred to at the end of chap. viii.
For a very full account of the diplomatic and consular policy of
the United States, see Schuyler, "American Diplomacy and the
Furtherance of Commerce." .
1 "Revised Statutes of the United States," 4083-4148.
CHAPTER VIII.
TREATIES AND CONVENTIONS.
1. TREATIES are compacts or agreements entered
into by sovereign states for the purpose of increas-
ing, modifying, or defining their mutual duties and
obligations.
Purpose of Treaties. To secure the observance of
the generally accepted rules of International Law,
treaties are not necessary, certainly among Christian
states. They become so only when states find it either
necessary or expedient to amend or modify their ex-
isting obligations, to define usages that are not clear,
to secure concerted action looking to the abandon-
ment of unjust or oppressive practices, or to obtain
general sanction in behalf of improved methods, or
the general acceptance of desirable reforms.
The Right of Making Treaties. The right of mak-
ing treaties is one of the essential attributes of sover-
eignty, and there can be no surer test of a semi-sover-
eign or dependent state than is deduced from the fact
that its ability to enter into treaty relations has been
abridged or destroyed. Dependent states, however,
may retain the right, to a greater or less degree, de-
pending upon the number and character of the sover-
eign rights which they have yielded, or of which they
have been deprived. They frequently retain the right
of making treaties of commerce and extradition, postal
and customs conventions, and, in some cases, treaties
1(56 OUTLINES OF INTERNATIONAL LAW.
of alliance and naturalization. The existence of such
powers, however, would be inconsistent with any con-
siderable degree of dependence on the part of the semi-
sovereign state. In the German Confederation, as re-
organized in 1815, a considerable degree of treaty-mak-
ing power w T as reserved to the component states. The
present German empire is a closer confederation, the
imperial government having sole power to conclude
treaties of peace or alliance, or treaties of any kind for
political objects, commercial treaties, conventions reg-
ulating questions of domicile, emigration, and postal
affairs, protection of copyright, and consular matters,
extradition treaties, and other conventions connected
with the administration of civil or criminal law. 1 The
states of the American Union are forbidden to enter
into treaties with foreign states; or to make agree-
ments with other states of the Union, except with the
consent of Congress.
Contracts and Agreements with Individuals. As
sovereign states have many of the essential character-
istics of corporations, they have the power of entering
into contracts or agreements with individuals. These
instruments are not treaties, however, nor are they,
in all respects, the same as contracts between private
persons or corporations. This for the reason that,
where a sovereign state is a party to a contract, it can-
not be coerced into specific performance of its agree-
ment except by reprisals or war ; nor, without its con-
sent, can it be sued for a failure to fulfil its obligation
to an individual.
2. The Treaty-making Power. That authority in
1 Hall, p. 22; Hertslet, "Map of Europe by Treaty," p. 1931.
TREATIES AND CONVENTIONS.
the government of a state which is intrusted with the
duty of entering into treaty relations is called the
treaty-making power. In states having a monarchical
form of government the treaty-making power is one
of the prerogatives of the crown ; in states having re-
publican institutions it is exercised by the executive,
either directly, or subject to the approval of some
branch of the legislative department of the govern-
ment. The constitution and laws of every state define
the treaty-making power, and determine what restric-
tions, if any, are placed upon its exercise ; and any
agreements undertaken in excess of these limitations
are unauthorized and void.
3. Conditions Essential to the Validity of Treaties.
To the validity of a treaty it is essential: 1st. That
the contracting parties should possess the power to en-
ter into treaty engagements. 2d. The formal consent
of the parties must be given, and this consent must be
mutual, reciprocal, and free. 3d. The subject of stip-
ulation must not be opposed to morality and justice.
(a.) The Power of Contracting Parties. States
which are parties to a proposed agreement must pos-
sess full treaty-making power as to its subject-matter.
Dependent states cannot enter into agreements which
are not authorized by their dependent condition ; and
states which are members of a confederation cannot
treat upon subjects which are reserved to the central
government by the constitution of the confederacy.
In the same manner the agents who are empowered
to negotiate treaties may not exceed the limits laid
down in their instructions or full powers. Any agree-
ments entered into by them in excess of their author-
ity are void, and ratification of them may be refused.
168 OUTLINES OF INTERNATIONAL LAW.
Such unauthorized agreements have been made at dif-
ferent times, usually by military commanders. They
are called sponsions, and are invalid unless approved
by the sponsor's government.
(5.) The Consent of the Contracting Parties. The
consent of the participating states must be expressly
and freely given. It must also be reciprocal ; and one
state, by its ratification or approval of a treaty, can-
not constrain another to ratify it, or to regard its pro-
visions as binding. In contracts between individuals,
if either party act under constraint, the resulting con-
tract is void. In the preparation of certain treaties,
however, especially in treaties of peace and in cartels
and capitulations, one of the contracting parties acts
under constraint of the most oppressive and humiliat-
ing land ; but this does not have the effect of invali-
dating the treaty. "Private contracts may be set
aside on the ground of the influence of fraud and un-
fair dealing, arising from their manifest injustice and
want of mutual advantage. But no inequality of ad-
vantage, no lesion, can invalidate a treaty." J
(c.) It must be Possible of Execution. The conduct
of states, like that of individuals, is regulated by well-
known moral standards, from which they are bound
not to depart. They are, therefore, prevented from
making that a subject of treaty stipulation the exe-
cution of which is physically or morally impossible.
Heffter holds those conditions to be morally impossi-
ble which are repugnant to moral order, or are opposed
to the free development of nations. 8 Such would be
stipulations tending to the destruction of a sovereign
1 Phillimore, vol. ii., p 72. 2 Heffter, 83.
TREATIES AND CONVENTIONS. 169
state, or the establishment of slavery. The same may
be said of provisions which are opposed to previous
treaties with other powers, or which are prejudicial to
the sovereign rights or powers of a third state.
4. Binding Force of Treaties. Treaties entered
into in conformity to these conditions are binding
upon all the signatory parties, and they continue in
force, whatever changes may take place in the inter-
nal affairs of the participant states. Changes of gov-
ernment affect in no way their binding force, and they
cease to be obligatory only when a state ceases to ex-
ist. Their inviolability, even when not especially guar-
anteed, is the first law of nations. Obligations created
by treaty are of the most sacred character, and their
violation, if persisted in, or not atoned for, is univer-
sally regarded as a just cause for war.
5. Manner of Negotiating Treaties. In former
times treaties were frequently negotiated by sover-
eigns in person ; ' at present they are usually entered
into by ministers or plenipotentiaries, selected for the
purpose by the proper municipal authority, and fur-
nished with special full powers to act in behalf of their
respective governments in the preparation and signa-
ture of the treaty. Preliminary negotiations are usu-
ally necessary, to determine the place and time of
meeting and the conditions of representation. In the
preparation of treaties of peace, or of agreements pre-
liminary to such treaties, the neutrality of the place is
secured by proper guarantees, and the personal secu-
rity of the ambassadors is carefully provided for, not
1 The Holy Alliance of Sept. 14 (26), 1815, was signed by the em-
perors of Austria and Russia and the king of Prussia.
170 OUTLINES OF INTERNATIONAL LAW.
only at the sessions of the conference, but in their
journeyings to and from the place of meeting. If the
proposed agreement be one of general interest, the
questions to be discussed are submitted to the powers
in advance, the limits of discussion are to some extent
defined, and the number and character of representa-
tives from each state is determined upon.
At the time appointed the representatives assemble
and exchange their credentials and full powers. If
several states are represented the conference is usually
presided over by the principal minister of foreign af-
fairs of the state in whose territory its sessions are
held, or by the representative of the government with
which the project originated. If need be, rules of proced-
ure are agreed to at a preliminary session. Each power
represented has a right to be heard, at length, upon all
projects submitted for discussion which in any w r ay af-
fect its interests. The proceedings of each session are re-
duced to writing, and are properly authenticated, and
the negotiation continues until an agreement has been
reached, or until the impossibility of reaching such an
agreement has become apparent. If questions are sub-
mitted to vote, nothing short of unanimous consent is
sufficient to carry a measure of prime importance. Af-
ter an essential article or stipulation has been adopted,
the majority rule may prevail in the decision of ques-
tions of detail, or in accessory stipulations of minor im-
portance.
Language Used in the Preparation of Treaties.
The language used in the preparation of treaties is
subject to no fixed rule. Each party may, of right,
insist upon the use of its own in the preparation of
treaties, as in every other public act, or a neutral Ian-
TREATIES AND CONVENTIONS.
guage may be adopted. In the former case there
would be as many original copies as there were par-
ticipant states. This would be true in form only, and
not in fact, since one of these originals would furnish
a model upon which the translation of the others would
be based. Latin was formerly used, as a convenient
and generally understood neutral language. It is still
the official language of the Holy See. Toward the
close of the seventeenth century it was replaced by the
French, which became the general diplomatic language
of Europe and America. It still retains that character
to a higher degree than any other. Since the begin-
ning of this century the greater part of the treaties
which have been negotiated in Europe have been
drawn up and signed in French. When France is one
of the signatory parties, however, a clause is usually
inserted to the effect that the use of that language is
not to be regarded as constituting a precedent. Trea-
ties to which England or the United States are parties
are usually drawn up in both languages, in parallel
columns. Treaties with the Ottoman Porte are drawn
up in Arabic and French.
Form and Signature. Xo rigorous form is neces-
sary to be followed in the preparation of these instru-
ments so long as the conditions of the agreement are
clearly expressed, and assented to, by the signatory par-
ties. Those entered into by Christian states begin with
a solemn invocation to the Deity, though this is fre-
quently omitted in treaties of a commercial character.
The first paragraph contains the name and designa-
tion of the contracting parties, followed by a clause
stating, in general terms, the object of the treaty or
convention, and by the names and titles of the minis-
1Y2 OUTLINES OF INTERNATIONAL LAW.
ters who have been empowered to represent the inter-
ested states in the negotiation. Next follows the body
of the treaty, which is made up of stipulations mutu-
ally agreed to. It is divided into articles and clauses,
the last of which fixes the terms of ratification and the
date of signature. As many copies are prepared as
there are contracting parties ; and, in affixing the sig-
natures and seals, the representative of each state signs
first the copy intended for his own government. The
order of the other signatures is determined by lot, or
alphabetically, the initial letter of each state determin-
ing the order of signature.
JRatification of Treaties. On account of the magni-
tude and importance of the interests involved, treaties
acquire binding force only when they have been rati-
fied by the sovereign authority of the states which are
parties to their operation, and all modern treaties con-
tain provisions stipulating for such an exchange of
ratifications. Ratification by one party does not con-
strain the others to a similar course ; but the act of
ratification, when completed by all parties, is retro-
active in its operation, and gives effect to the treaty
from the date of signature, unless the contrary is ex-
pressly stipulated. There has been considerable dis-
cussion as to whether ratification could be withheld,
without lack of good faith, in treaties containing no
such provision. Some Continental writers, following
the rule of the Roman Law, have held that states are
bound by the acts of their plenipotentiaries, when they
have not exceeded their full powers and confidential
instructions; as principals are bound by the acts of
their duly authorized agents. Others justly make a
distinction, in this respect, between treaties and con-
TREATIES AND CONVENTIONS.
tracts. Treaties are compacts between sovereign states,
involving interests of the greatest magnitude, and often
of the most intricate character, far transcending in im-
portance the agreements of individuals, which, how-
ever complicated, are relatively simple in comparison.
However full and minute the powers and instructions
of ministers may be, they are still liable to errors of
judgment or mistakes of policy, which can only be dis-
covered and remedied by a careful and disinterested
examination of their work, and a full criticism of its
provisions from all points of view.
Treaties sometimes contain provisions for the acces-
sion of third parties to their operation. The Declara-
tion of Paris is an example. Such accession is had by
a formal act on the part of the state desiring partici-
pation, by which it assumes, and agrees to be bound
by, the obligations of the treaty. This is especially
the case in treaties having in view some modification
or amendment of the rules of International Law. The
provisions of the Declaration of Paris, in 1856, have
been acceded to by many states in Europe and Amer-
ica. England and the United States, in the Treaty of
Washington, of 1871, agreed to use their influence to
induce other nations to accept the principles of mari-
time law laid down in that instrument.
6. Classification of Treaties. Treaties are susceptible
of classification, according to their subject-matter, into :
(a.) Treaties, properly so called.
(b.) Cartels.
(c.) Capitulations.
(d.) Suspensions of Arms, or Truces.
Those of the first class, or treaties proper, are again
subdivided into :
OUTLINES OF INTERNATIONAL LAW.
(1.) Transitory Agreements or Conventions. These
are treaties the immediate execution of which is essen-
tial, and which expire when the stipulated act has been
performed. Their effects only are permanent. Such
are boundary conventions, treaties of cession, etc., cor-
responding to executed contracts at Common Law.
(2.) Permanent Treaties. These have continuing
effect, and regulate the future relations and actions of
the contracting parties. Treaties of friendship and
commerce, of neutrality, extradition, and naturaliza-
tion, and postal and customs conventions are exam-
ples of this class. These treaties may be of perpetual
or limited duration. They may go into effect at a
fixed date in the future, and may expire at a certain
date, at the expiration of a certain period, or may be
terminated at the will of either party, upon due notifi-
cation. Their existence may be terminated by war, or
they may come into effect only during hostilities be-
tween the interested parties.
Cartels are agreements entered into in time of war,
for the exchange of prisoners. They are made by the
commanders-in-chief of the belligerent forces, with
the express or presumed consent of their governments.
They may be transitory in character, or for the period
of the war. In some European states this term is ap-
plied to an agreement entered into in time of peace for
the extradition of deserters from the military service.
Capitulations are agreements entered into, in time
of war, by the commanders of hostile fleets or armies,
for the surrender of a fortified place or fleet, or of a
defeated army. The proposition may originate with
the commander of the place, fleet, or army, or may be
in the nature of a demand made upon him by the op-
TREATIES AND CONVENTIONS. 175
posite, or successful, party. Upon either of these, as a
basis, the capitulation is drawn up, the terms being
modified, and the conditions of surrender determined,
by the relative strength and resources of the bellig-
erent parties. Every general commanding a besieged
place or separate army is presumed to have authority
to enter into arrangements of this kind, though his
power may be restricted in some way by the sovereign
authority of his own state. In such an event his action
would be subject to the approval of his government,
and he should notify his opponent that such is the case.
Cartels and capitulations are drawn up in the same
form as treaties. The latter are signed first by the
successful party.
7. Objects of Treaties. The purpose or object of a
treaty is, in most cases, sufficiently determined by its
title. There are some, however, which require addi-
tional explanation.
Treaties of Alliance. These are agreements under-
taken by two or more states with a view to secure
concerted action for a certain purpose. They may be
either temporary or permanent in character, and are
entered into by states which are menaced by a com-
mon danger, or whose mutual interests are threatened.
They are based upon treaty stipulations, and, however
slight the concert of action may be, the resulting alli-
ance possesses some of the essential features of a league
or confederation. The terms of the treaty of alhance
determine the conditions of the union. Alliances may
be equal or unequal, offensive or defensive, or both.
Allied states may guarantee the continuance of a cer-
tain state of affairs in a third state, or in one of the
states of the alliance. They are defensive when their
176 OUTLINES OF INTERNATIONAL LAW.
object is to defend a common interest against aggres-
sion. Such alliances are conservative in character, and,
by aggregating the influence and resources of a num-
ber, aim to secure respect for the sovereign rights of
each of the component states. Offensive alliances are
formed for the purpose of attacking a state, or league
of states, either directly, or upon the occurrence of cer-
tain conditions. From their nature they are a con-
stant menace to the peace of nations. The leagues
organized to resist the schemes of Louis XIV. and Na-
poleon, though offensive in form, were really defensive
in character, and tended to preserve the principle of
balance of power. If alliances of this class be except-
ed, it will be found that the offensive combinations of
which history has preserved the records, whatever may
have been the real or assumed necessity of their organ-
ization, and however wisely they may have been ad-
ministered, have rarely secured the prevalence of jus-
tice, or contributed to the advancement of any right-
eous cause.
Equal Alliances stipulate for the same or similar
contributions of force or resources, or for a propor-
tionate contribution based upon the resources of each
ally.
Unequal Alliances are those in which the contribu-
tions stipulated for are unequal in character or amount,
or in which the allied powers enjoy different degrees
of consideration or influence. Each party to a treaty
of alliance is the sole judge as to when the case con-
templated by the treaty exists, or the action or inter-
vention of an ally is required.
Treaties of Guarantee. These compacts are acces-
sory in character, and are entered into for the purpose
TREATIES AND CONVENTIONS. 177
of securing the observance of a treaty already exist-
ing, or the permanence of an existing state of affairs.
If the guarantee covers the violation of any and every
right, the treaty of guarantee creates an alliance. The
term guarantee, in its most general sense, includes all
treaties the purpose of which is to secure the observ-
ance and execution of other treaties, or the mainte-
nance of certain existing conditions for a limited or
unlimited period of time. The conditions of the guar-
antee are stated, in detail, in the body of the treaty.
The guarantor state decides when the case exists which
was contemplated in its guarantee. It is required to
fulfil the conditions stated in the guarantee, and no
more. Any change in the guaranteed treaty, without
the consent of the guarantor, annuls the obligation.
If the duty or aid stipulated is inadequate to the end
proposed in the guarantee no additional duty or aid
can be required.
The following conditions have been made the sub-
jects of guarantee :
(a.) The political existence of a state, its sovereignty,
or independence, or its existence within certain territo-
rial limits. 1
(5.) The permanent neutrality of a state, 2 or its neu-
trality under certain conditions. 3
(c.) The free navigation of certain rivers, 4 and the
1 The sovereignty and independence of Greece was guaranteed by
France, Great Britain, and Russia, in a treaty negotiated at London,
in 1832. The Treaty of Paris, of 1856, contained a somewhat simi-
lar provision respecting the Ottoman empire.
2 The case of Switzerland is an example of this.
3 The perpetual neutralization of Belgium was guaranteed by the
great powers in the treaty of April 19, 1839.
4 Kliiber, p. 204.
12
178 OUTLINES OF INTERNATIONAL LAW.
permanent neutrality of works of improvement upon
them.
(d.) The payment of loans. 1 In this case the guaran-
teeing powers usually become sureties, and are obliged
to make good any default of their principals in their
stipulated payments of principal or interest.
Reciprocity Treaties. These are compacts contain-
ing stipulations requiring the mutual or reciprocal ob-
servance of certain duties or obligations. Most treat-
ies, to a certain extent, involve reciprocal action, or
the recognition of mutual rights and duties. It is
only when a treaty involves a considerable number of
such obligations that it receives this name. Extradi-
tion and naturalization treaties are reciprocal, but only
on the subject from which each is named. Most reci-
procity treaties, properly so called, are of a commer-
cial character, and stipulate for specially favorable
terms of commercial intercourse, for consular privi-
leges, for the admission of certain products of each
state into the ports of the other at special rates of
duty, or without the payment of duty. They are usu-
ally entered into for a limited period of time, at the
end of which they expire, or, at the will of the inter-
ested states, are revised and extended for a further pe-
riod. The component states of a union or confederacy
are frequently obliged, by the constitution or treaty of
union, to grant many reciprocal privileges to each oth-
er. This was the case in the Zollverein, and is so in
the existing German confederation. According to the
Constitution of the United States, the states of the
1 In the Treaty of London, in 1832, France, Great Britain, and
Russia guaranteed a loan of Otho, the Bavarian prince who had
been created by them King of Greece.
TREATIES AND CONVENTIONS. 179
Federal Union are obliged to extradite criminals on the
demand of other states, to accord the privileges of cit-
izenship to citizens of other states, and to give full faith
to the properly authenticated records and judgments
of courts in the other states of the Union.
8. Termination, of Treaties. Treaties cease to be
binding
(a.) At the end of a stipulated period, or at a date
mutually agreed upon by the signatory parties.
(b.) When the act stipulated for has been performed.
(c.) With the mutual consent of the contracting par-
ties, or when either party retains the right, according
to the terms of the agreement, to terminate it upon
due notice ; then at the expiration of the notice.
(d.) When either party wilfully violates his promises,
or ceases to be bound by them, or fails to act in good
faith according to their stipulations. This will be the
case if but a single article has been violated, for the
agreement was to observe the treaty in its entirety.
In this event the other party is released from his obli-
gations, and the instrument becomes void ; or he may
insist upon a compliance with the stipulations of the
treaty, and may demand indemnities for any injury
that has resulted from such failure, on the part of the
defaulting state, to observe its agreement. As treaties
convert imperfect into perfect obligations, the injured
party may resort to force to obtain redress for the in-
jury which he has sustained.
Treaties are suspended, and by some authorities are
cancelled, by the occurrence of war between the con-
tracting parties. They remain suspended during the
period of the war, from the outbreak of hostilities
until the negotiation of a treaty of peace. The least
180 OUTLINES OF INTERNATIONAL LAW.
effect of war is to interrupt peaceful relations. It
therefore suspends the operations of all treaties not
permanent in character, or which do not contemplate
a state of war. The belligerent states resume friendly
relations by the execution of a treaty of peace, and
that treaty should determine to what extent treaty
relations between them shall be resumed.
The following treaties, however, are not suspended
by the outbreak of war between the contracting par-
ties:
(1.) Treaties of a permanent character, executed with
full knowledge that war may occur, but given a per-
manent character by special stipulation.
(2.) Treaties entered into with a view of modifying
or amending the rules of International Law.
(3.) Treaties which contemplate the occurrence of
war, and which come into effect only at the out-
break of hostilities.
9. Rules for the Interpretation of Treaties. Treat-
ies, like laws, are drawn in general terms, and in their
preparation the effort is made to frame their provis-
ions in such terms as will include all cases that may
fairly arise under them. This is a task of extreme
difficulty. As the parties to such agreements, more
frequently than not, speak different languages, and
represent different, and sometimes opposing, legal
and political systems, it is not at all remarkable that
causes of difference should arise more frequently in the
execution of treaties than in the operation of munici-
pal laws. The rules of interpretation in both cases are
the same ; the task of interpretation, however, is vastly
more difficult, in the case of treaties, than in the case
of contracts and municipal laws. The attempt to
TREATIES AND CONVENTIONS.
frame rules for this purpose lias been frequently made ;
not always, however, with entirely satisfactory results.
The English rules of Rutherforth are based upon the
Common Law rules of interpretation as applied to
contracts. Those of Yattel and Domat are based upon
the rules of the Roman Law. To these authors the
student is referred for a general discussion of the sub-
ject.
The following rules are now generally sanctioned :
(1.) Interpretation must be mutual. Neither party
to a treaty can apply his own rule without impair-
ing, or destroying, the binding force of the instru-
ment.
(2.) A clause can have but one true meaning.
(3.) The words of a treaty are presumed to have
been used in their usual sense and acceptation at the
time the treaty was made, unless such interpretation
involves an absurdity.
(i.) Terms technical to an art are used in the sense
or meaning applied to them in that art.
(5.) Clauses inserted at the instance, or for the ben-
efit, of one party, are strictly construed against the
party in whose favor they were inserted. It is his
fault if he has not expressed himself clearly.
(6.) Favorable clauses are to be interpreted liberally.
Odious clauses are to be interpreted strictly. Favora-
ble clauses are those granting privileges to individuals
or states, or doing away with, or modifying, restrictions
upon rights. Harsh clauses are those depriving indi-
viduals, or classes of persons, of rights already existing,
or abridging such rights or privileges, or rendering
them ineffective.
(7.) An interpretation which renders a treaty inop-
182 OUTLINES OF INTERNATIONAL LAW.
erative is to be rejected. Treaties are entered into for
the purpose of accomplishing an end, or of attaining an
object. Any interpretation, therefore, which renders
a treaty wholly or in part inoperative, is absurd.
(8.) Special clauses are to be preferred to general.
Prohibitory clauses to permissive; and, in general,
that which is expressed in great detail is to be pre-
ferred to that which is stated in general terms, or in
less particular detail. General clauses are declaratory
of a principle. If exceptions exist, they are accurately
defined and stated in the modifying clauses which fol-
low the principal clause. The broad terms of a gen-
eral clause, or title, cannot be appealed to as authority
against the precise limitation or exemption of the spe-
cial clause.
(9.) In the interpretation of a treaty the instrument
must be regarded as an organic whole, and every part
must be considered with reference to every other part.
Hence earlier clauses are explained by later clauses in
the same treaty, or by clauses on the same subject in
later treaties. Obscure clauses by clearer and more
precisely stated clauses of later date. As regards any
particular subject of stipulation, the whole treaty pol-
icy of two states on that subject is to be considered.
Later treaties explain and modify earlier treaties on
the. same subject.
Strict, or Restrictive Interpretation, consists in the
precise application of the terms of an instrument to a
particular case arising under it. It involves the exclu-
sion of all cases not covered by a literal rendering of
its terms.
Liberal, or Extensive Interpretation, consists in an at-
tempt to so construe the provisions of a treaty as to
TREATIES AND CONVENTIONS. 183
include within its operations cases similar in principle
to those specifically provided for. It is, in substance,
a broad and comprehensive rendering of the clauses of
a treaty, regard being had to the spirit rather than the
letter of the instrument.
In connection with the subject of interpretation the
following definitions are given of terms frequently oc-
curring in treaties :
Protocol. This is a word of Byzantine origin, and
was at first applied to the first, or outer, sheet of a roll
of manuscript, upon which was written or impressed
the writer's name, the date of the instrument, and the
title of the minister from whose office it issued. As a
diplomatic term it is applied to the rough draft of a
public act, and also to the formally authenticated min-
utes of the proceedings of a congress or conference.
In a similar sense it is applied to the preliminary acts
and agreements entered into by ambassadors in the
preparation of a treaty.
Recez. This term, is applied to the act of a diet, or
congress, in reducing to writing the result of its delib-
erations upon a particular subject, before final adjourn-
ment.
Separate Articles. These are clauses added to a
treaty after it has been formally signed and ratified.
They are contained in a separate instrument, and are
duly authenticated, but are construed in connection
with the treaty to which they refer, and of which they
form a part.
The most Favored Nation Clause. The use of this
clause is becoming constantly more frequent in treat-
ies, especially in those of a commercial character. It
commends itself by its convenience. Its effect is to
184: OUTLINES OF INTERNATIONAL LAW.
extend its scope and operation to cover any conces-
sions of privileges, of a similar character to those stip-
ulated for, which may be granted in the future, by
either party, to other states, or to their citizens or sub-
jects. The clauses of later treaties granting such con-
cessions in this way become an integral part of the
earlier treaty. The following clause, extracted from
a recent treaty of the United States, illustrates the
principle involved: "If either party shall hereafter
grant to any other nation, its citizens or subjects, any
particular favor, in navigation or commerce, it shall
immediately become common to the other party, free-
ly, when freely granted to such other nation, or on
yielding the same compensation when the grant is
conditional. 1
References. The most valuable collection of treaties in the Eng-
lish language is that of Hertslet, vols. i.-iv. This work should be
used in connection with "The Map of Europe by Treaty," by the
same author. For the treaties of the United States, see " Treaties
and Conventions of the United States," etc., 1776-1889, and "The
United States Statutes at Large " (annual vols.), 1889-1891. The
Spanish work of Calvo, in six volumes, contains all treaties nego-
tiated by the Latin states of America prior to 1862. There are
many valuable collections of treaties to which the Continental
states of Europe have been parties. None of them are complete,
however. Jeukinsou's collection contains most English treaties
between 1648 and 1785. See, also, G. F. De Martens, "Esquisse
d'une Histoire Diplomatique des Traitgs," etc. ; " Recueil cles Priu-
cipaux Trait&s," etc., 1761-1818, by G. F. De Martens, with Murr-
harcVs continuation, bringing the work to 1860 ; and the " Corps
Universel Diplomatique" of J. Dumont, which, with its additions,
etc., covers, with more or less fulness, the period between 315 and
1 "United States Statutes at Large," 43d Congress, 1873-1875,
TREATIES AND CONVENTIONS.
1738 A.D. Rymer's "Foedera," etc., contains a collection of treat-
ies, between England and other powers, between the years 1101
and 1654. A supplement to this work, in fifty-seven volumes, is
preserved in the British Museum. For a full bibliography of this
subject, see Kliiber, pp. 424-437.
CHAPTER IX.
THE CONFLICT OF INTERNATIONAL EIGHTS.
1. Causes of Conflict. When a conflict of inter-
national rights arises, as is the case whenever one state
has a cause of difference with another, it is customary
for the state whose rights have been denied, or tres-
passed upon, to make known its cause of complaint to
the offending state, and to demand that justice be done
for the wrong that has been committed. The urgency
of this demand is always proportional to the gravity
and importance of the injury sustained. The motive
of some violations of perfect or sovereign rights may
be so obvious and unmistakable that no explanations
are asked for by the offended state, and resort is at
once had to forcible measures of redress. On the other
hand, the offence may consist in the violation of some
minor rule of comity of so little importance that a
mere exchange of diplomatic notes is deemed a suffi-
cient remedy. Between these two extremes lie the
various methods of settling international disputes.
2. Methods of Adjusting International Differences.
Those most frequently resorted to are
(a.) An amicable adjustment of the difference by the
interested states.
(5.) Mediation.
(<?.) Arbitration.
(1.) The Amicable Adjustment of Disputes. When-
ever a state has occasion to complain of the action of
THE CONFLICT OF INTERNATIONAL RIGHTS.
another toward itself, or toward one of its subjects, a
statement of the particular act complained of is pre-
pared in the Foreign Office of the offended state. This
statement is based upon all the ascertainable facts of
the case, which should be so carefully sifted and veri-
fied, by those charged with their investigation, as to
make it impossible to question their substantial accu-
racy. This is necessary because it is impossible, in
international affairs, to produce evidence in the ordi-
nary legal acceptation of the term. The facts thus
ascertained and verified are next examined with a view
to ascertaining whether they do, or do not, constitute
a violation of International Law. If they do a case is
prepared, and a formal demand for redress is made and
forwarded, through the proper diplomatic channels, to
the government by whom the injury was committed.
In support of this case reference is made to the works
of standard text-writers, to the provisions of treaties,
if the case be covered by them, and to precedents in
international intercourse, especially to those estab-
lished by the offending state in its international rela-
tions. In conclusion, such explanation, disavowal, or
reparation is demanded as is warranted by the circum-
stances of the case.
If that government be clearly in the wrong it ac-
knowledges its error, or disavows the act of its sub-
ordinate officials ; and offers reparation, accompanied
by such explanation and apology as the occasion seems
to demand. In cases where such a remedy is suitable,
money indemnities are agreed upon and paid to injured
parties. It rarely happens, however, that either state,
in a particular controversy, is either entirely right, or
entirely wrong; and the same facts are, in general,
188 OUTLINES OF INTERNATIONAL LAW.
differently regarded by each of two interested states.
This leads to controversial discussion, each state ad<
vancing arguments and citing authorities in support
of that view of the case which it believes to be most
nearly in accordance with justice. A correspondence
of this kind may continue through a period of years,
and rarely leads to results of direct or immediate im-
portance. It is resorted to when two states cherish
different views as to the justice of a practice main-
tained or advocated by one and denied by the other.
Such was the long controversy between England and
the United States upon the right of search, which ex-
tended over a period of more than fifty years. "When
a nation complains of a clear and decided violation of
International Law, however, and no dispute exists as
to the facts in the case, reparation on the part of the
offending state is usually made with the greatest
promptness. 1
1 The following cases are cited in illustration of this principle:
Case of the Laconia. In December, 1878, the American whaling-
ship Laconia, while in the port of Zanzibar, Africa, was boarded by
an officer of the British ship of war Leader, Captain Earl. The
boarding party took from the Laconia three Africans, claiming that
they were slaves, Captain Earl justifying his act under the treaty of
1862, between England and the United States, for the suppression of
the slave trade. The matter was represented to the British govern-
ment, by whom the action of Captain Earl was promptly disapproved,
and the regrets of Her Majesty's government at the occurrence were
conveyed, through the British minister, to the government at "Wash-
ington (" Foreign Relations of the United States," 1879, pp. 415-432).
Case of the James Bliss. In 1872 the American schooner James
Bliss was seized, in British territorial waters, by the Canadian police
cutter Stella Maris, for an alleged violation of the fishery laws.
Soon after her arrival in the port of Gaspe Basin the commanding
officer of the police cutter caused the Dominion flag to be hoisted
THE CONFLICT OF INTERNATIONAL RIGHTS. 139
Duty of Moderation. In this method of adjustment,
much depends upon the tact and moderation shown
by- the diplomatic representatives of the interested
states in dealing with the question of difference. " It
not infrequently happens that what is at first looked
upon as an injury or an insult is found, upon a more
deliberate examination, to be a mistake rather than an
act of malice, or one designed to give offence. More-
over, the injury may result from the acts of inferior
persons, which may not receive the approbation of
their own governments. A little moderation and de-
lay, in such cases, may bring to the offended party a
just satisfaction, whereas rash and precipitate measures
may often lead to the shedding of much innocent blood.
The moderation of the government of the United States
in the case of the burning of the American steamboat
Caroline, in 1837, by a British officer, led to an amica-
ble adjustment of the difficulties arising from a viola-
tion of neutral territory, and saved both countries from
the disasters of a bloody war." ' The cases of the Creole
and of what is known as the Tahiti affair are illustra-
tions of the same principle. In the former case " the
feeling in the southern states of the Union was strong
above the American, at the mast-head. The act was repeated on the
following day, in both instances against the protest of the American
consul. The facts were then reported to the Department of State
in Washington, by whom they were brought to the attention of the
Governor-general of Canada in the diplomatic way. Action was at
once taken in the matter. Lord Dufferin, the governor - general,
disavowing, in the amplest manner, any intention of showing disre-
spect to the American flag. He also announced that he had given
most particular instructions directing the discontinuance of the prac-
tice ("Foreign Relations of the United States," 1872, pp. 200-208).
1 Halleck, vol. i., pp. 413, 414.
190 OUTLINES OF INTERNATIONAL LAW.
in favor of war, and in all human probability would
have caused it, had it not been for the friendly and
courteous spirit in which the American and British
governments carried on their communications on the
subject with each other." In the latter case, "the
menacing effects of popular indignation at a supposed
gross national insult were averted by the fairness and
temperance with which one government made its
claim for redress, and by the readiness on the other
side to enter into a calm investigation of all the cir-
cumstances of the case, and to listen to reason and jus-
tice rather than to give way to national vanity. Here
we have three occasions in which, by the self-action of
the parties concerned, by a cool and candid examina-
tion of the subject in dispute, and by a gentle method
of terminating differences, three of the greatest coun-
tries in the world set examples of forbearance that
deserve to be recorded as precedents worthy of imita-
tion." '
Mediation. Of all the methods hitherto proposed
for preventing international strife this has been by far
the most effective and successful in its practical work-
ing. It consists, in substance, of a reference of the
cause of difference to a disinterested power, who sug-
gests a remedy, or, more frequently, proposes an ad-
justment based upon such mutual concessions as will
remove the cause of difference or irritation. Media-
tion may be asked by the interested states, or a third
power may tender its good offices, with a view to the
maintenance of peace. In the latter case the friendly
1 Sir Edward Creasy, "First Platform of International Law,"
pp. 391, 392; Abdy's Kent, p. 72.
THE CONFLICT OF INTERNATIONAL RIGHTS.
powers tender their good offices, which, may be accept-
ed, or not, by the interested states. This method of
adjusting international differences was frequently re-
sorted to during the Middle Ages, especially by the
pope, and there are numerous instances of his success-
ful mediatory interference to be found in the history
of Europe during that period. In modern times the
tendency to mediation has greatly increased in force,
and but few cases of conflict of international right
have arisen, in recent times, in which the good offices of
friendly powers have not been tendered to the litigant
states. Although these offers have not always, or even
usually, been accepted, their effect has been beneficial,
inasmuch as they have furnished new grounds, or rea-
sons, for the settlement of existing difficulties, and have
suggested methods of adjustment which had not oc-
curred to the interested parties.
Arbitration. Private arbitration consists in the
reference of an international difference or dispute to a
tribunal composed of one or several persons. To this
tribunal the question of difference is submitted, and its
decision, when rendered, is binding upon the interested
parties. This method of adjustment does not afford
so prompt a remedy as can be obtained through media-
tion, and is applicable to a somewhat different class of
cases. It possesses an advantage over that form of
adjustment, however, in that its decisions have greater
binding force, since, if rendered in good faith, they
cannot be rejected by litigant parties as can offers of
mediation.
The composition of the tribunal, the method of select-
ing its members, the time and place of meeting, its rules
of procedure, and the precise question to be referred to
192 OUTLINES OF INTERNATIONAL LAW.
it for decision, are always made the subject of a pre-
liminary treaty. This instrument also contains a sol-
emn agreement, on the part of the interested states, to
abide by the decision of the board of arbitration. If
a person of sovereign rank is selected to act as an ar-
bitrator, the case on each side is submitted to him,
through his minister of foreign affairs, and his decision
is rendered through the same channel. If the tribunal
is composed of several members, the cases are submit-
ted by counsel, whose arguments are heard. The pro-
visions of the Roman Law on the subject of arbitration
may, with the consent of the interested parties, be made
obligatory upon the tribunal. A more liberal code of
procedure is frequently provided, or the rules of the
Roman Law are somewhat modified in their applica-
tion to a particular case.
In reaching a decision the majority rule prevails, un-
less otherwise precisely stipulated in the preliminary
treaty, and the decision of the tribunal binds the liti-
gant states, unless its validity can be contested upon
any one of the following grounds :
(1.) If one of the members of the tribunal has not
acted in good faith ; or if its decision be tainted with
fraud.
(2.) If any of the conditions of the preliminary treaty,
as to method of procedure, time and place of meeting,
have not been complied with ; or if the decision has
not been rendered within the time therein stated.
(3.) If the tribunal has exceeded its jurisdiction; or
if its decision goes outside the case submitted to it for
adjudication.
3. Mediation and Arbitration Compared. If the
cases be compared in which these methods of adjust-
THE CONFLICT OF INTERNATIONAL EIGHTS. ^93
ing international disputes have been successfully ap-
plied, it will be seen that mediation has been found
most useful when it has been resorted to to prevent
threatened hostilities, especially in cases involving na-
tional reputation, or when considerable national feeling
has been aroused. It has also been found a successful
method of terminating an existing war, especially when
a disinterested state has chosen a fitting opportunity,
during an interval of hostile operations, to tender its
good offices to the belligerent powers. Arbitration,
on the contrary, " implies a belief on the part of both
that either a legal or quasi-legal question is involved,
and that each is, in his own opinion, right ; or, in other
words, that, when the state of facts is carefully exam-
ined, and the law or equitable principle accurately ex-
pounded, each hopes and thinks the result will be in
his own favor. A bonafide belief in the justice of one's
own cause is an essential element in a successful arbi-
tration. If such a belief is absent, there can be no
readiness to obey the award, and the same causes of
acrimony exist after the award as before it." ' " Ar-
bitration is an expedient of the highest value for ter-
minating international controversies ; but it is not
applicable to all cases or under all circumstances, and
the cases and circumstances to which it is not applica-
ble do not admit of precise definition. Arbitration,
therefore, must of necessity be voluntary ; and though
it may sometimes be a moral duty to resort to it, can-
not be commanded, in any form, by what is called the
positive law of nations." *
4. Measures of Redress, Involving the Use of Force,
1 Amos, "Science of Law," p. 348.
8 Sir Montague Bernard, Letter to London Times, Oct. 18, 1873.
13
194 OUTLINES OF INTERNATIONAL LAW.
but Falling Short of War. Between the -peaceable
methods of adjusting international disputes, which
have already been described, and an actual resort to
force, lie certain measures of redress of a more serious
character. These methods presume the existence of a
cause of difference between two states, justifying a de-
parture from the normal relations existing between
the nations in time of peace, and the measures adopted
at times involve the use of violence or force ; but, even
when exercised to an extreme degree, they fall far short
of open or public war. They are resorted to only w T hen
redress has been asked for and denied, and are justi-
fiable only when the offending nation acts with full
knowledge, and persists in doing injustice after its at-
tention has been repeatedly drawn to its wrongful acts.
The measures of redress involving the use of forcible
or hostile methods are susceptible of classification un-
der one of two heads retorsion and reprisals.
Retorsion consists in an application of the same rule
of conduct in our relations with another state as is ap-
plied, by that state, in its relations with us. It is an
application of the law of retaliation in international
affairs. If a state imposes unjust restrictions upon
aliens residing within its territories, the state whose
subjects they are is justified in imposing the same, or
equivalent, restrictions upon the subjects of the offend-
ing state who are resident within its borders. If it
refuse privileges usually granted by states to ambassa-
dors and consuls, the offended states are justified in a
similar refusal of privileges to its consuls and diplo-
matic representatives.
The field within which the principle of retorsion
may be applied, already very extensive, is constantly
THE CONFLICT OF INTERNATIONAL RIGHTS. 195
increasing. This state of affairs is due to the fact
that the commercial relations of states are increasing
in intricacy in direct proportion as they increase in
extent and amount, giving rise to frequent conflicts
between the business, or internal, policy of particular
states, and their external, or international, policy. Illus-
trations of this tendency are to be found in the expe-
rience of states which derive a large portion of their
public revenue from customs duties. If some article
of native production falls in price on account of for-
eign competition, an attempt is made to remedy the
difficulty by increasing the duty upon the correspond-
ing foreign article. This is felt at once in the state in
which the particular article is produced, or manufact-
ured, and retaliatory measures are resorted to with a
view of compelling the removal of the trade restriction.
Acts of retorsion must be confined to the class of
imperfect rights, except when resorted to by way of
retaliation for similar or identical acts on the part of
a foreign state. The denial of a perfect right amounts
to a just cause for war.
Reprisals. Reprisals consist in the forcible seizure
or detention of property belonging to an offending
state, or to its citizens, which may be found within the
territory of the offended state, or on the high seas.
The things seized are held subject to the termination
of the controversy. If it be settled amicably, the
property is restored, and reparation is sometimes made
for the delay and damage that have resulted from the
seizure. If the dispute results in war, the property
seized is condemned as prize.
Reprisals differ from retorsion not only in kind but
in degree. Retorsion is resorted to when imperfect
196 OUTLINES OF INTERNATIONAL LAW.
rights have been trespassed upon, or when there has
been a failure to observe the rules of comity. Reprisals
are resorted to when perfect rights have been drawn
in question, or denied, or when there has been an ab-
solute refusal of justice. They are acts of violence,
and may be regarded by the state toward which they
are directed as amounting to a declaration of war.
They are justifiable only when there has been an ab-
solute denial of justice, so deliberate and intentional
on the part of the offending state as to constitute a
sufficient cause for war. If war does not result, it is
because the offended state, appreciating the hardship
and suffering that are involved in a resort to actual
hostilities, chooses to regard the offence as technical,
by undertaking to redress its wrong by similar, though
less violent, measures. In recent times they have been
less frequently resorted to than formerly, especially
by the more powerful states of Europe and America
in their occasional controversies with each other. The
present tendency is to resort to them only when the
injured state is considerably more powerful than its
adversary, and generally with the effect of obtaining
the desired redress without recourse to war. " Much
of what appears in the older and even in some modern
books upon the subject of reprisals has become anti-
quated. Special reprisals, or reprisals in which letters
of marque are issued to the persons who have suffered
at the hands of a foreign state, are no longer made ;
all the reprisals that are now made may be said to be
general reprisals, carried out through the ordinary au-
thorized agents of the state, letters of marque being
no longer issued." '
1 Hall, p. 312, note.
THE CONFLICT OF INTERNATIONAL RIGHTS. 197
References. Three methods of adjusting international disputes
have been discussed in this chapter 1. Amicable adjustment ; 2.
mediation; 3. arbitration. Under the head of amicable adjust-
ment, the following references are suggested : Hall, p. 306 ; Hal-
leek, vol. i., chap, xiv., 1-3 ; Heffter, liv. ii., chap, i., 106-108 ;
Vattel, book ii., chap, xviii., 324-326 ; Creasy, pp. 390, 391 ; Phil-
limore, vol. iii., chap, i., pp. 2-5. For mediation, see Boyd's
Wheaton, pp. 97-99, and pp. 345, 706 ; Halleck, vol. i., chap, xiv.,
5-6; Heffter, liv. ii., chap. i., 107; Creasy, pp. 390-392 ; Kliiber,
chap, iii., 318-321 ; Vattel, book ii., chap, xviii., 328. Under the
head of arbitration see Hall, p. 306 ; Manning, pp. 499-504 ; Hal-
leck, vol. i., chap, xiv., 7, 8 ; Boyd's Wheaton, 288 ; Vattel, book
ii., chap, xviii., 329-334 ; Wildman, vol. i., p. 186 ; Heffter, 109 ;
Kliiber, 318; Creasy, p. 83, and pp. 394-397, 698 ; Phillimore, vol.
iii., pp. 2-15; G. F. De Martens, vol. ii., 176. For the schemes
which have been suggested for the peaceable settlement of inter-
national differences, see Manning, chap. xiv. ; Amos, " Science of
Law," pp. 345-359 ; Amos, "Political and Legal Remedies for
War;'' Bernard, "Neutrality of England," pp. 494-506; Wheaton,
" History of the Law of Nations," pp. 750-758 ; Laveleye, " La
Guerre en Europe et Arbitrage ;" Abbot, " Essays on Modern Inter-
national Law," essay v., "The Primacy of the Great Powers;"
essay vi., " The Evolution of Peace."
CHAPTER X.
WAR.
' The choler and manhood that you have, score it, in God's name,
upon the fronts of your enemies, but stain not the honor of a sol-
dier by outraging unarmed innocence. Live upon your means like
soldiers, and not by pilfering and spoiling like highway robbers.
This if you do not you shall ever be infamous, and I with such help
shall never be victorious." ' GUSTAVUS ADOLPHUS.
1. The Right of Redress. As there is no superior
authority to which a state can appeal for redress when
any of its sovereign rights have been trespassed upon,
denied, or impeded in their exercise, it is compelled, as
a last resort, to redress its own injury, or wrong. This
it does by a suspension of all friendly relations with
the offending state, and by a resort to such acts of
hostility as are authorized by the laws of war. Again,
in the performance of its duty of protecting its citi-
zens and their property from acts of domestic violence,
a government sometimes finds its ordinary legal ma-
chinery inadequate to the purpose, and is compelled to
make use of the public armed force in order to compel
obedience to the law, to quell insurrection and rebel-
lion, or to enforce respect for its neutral obligations.
In one case the state uses force against another state ;
in the other its force is directed against a portion of
its own population.
2. Definition and Purpose of War. War may there-
1 Abbot, "Essays on Modern International Law," p. 162.
WAR. 199
fore be defined as an armed contest between states or
parts of states. It is undertaken by one state against
another, for the purpose of compelling an offending
state to fulfil its obligations as a party to Interna-
tional Law. It is undertaken against persons within
its territory for the purpose of compelling obedience
to its municipal laws. When its object is attained, in
either case, war itself becomes unlawful and must cease.
3. Rightfulness of War. With the inherent right-
fulness of war International Law has nothing to do.
War exists as a fact of international relations, and, as
such, it is accepted and discussed. In defining the
laws of war, at any time, the attempt is made to form-
ulate its rules and practices, and to secure the gen-
eral consent of nations to such modifications of its
usages as will tend toward greater humanity, or will
shorten its duration, restrict its operations, and hasten
the return of peace and the restoration of the belliger-
ent states to their normal relations.
i. Classification of Wars. Wars are classified ac-
cording to the point of view from which they are ex-
amined or discussed. They are classified according to
their causes into wars of opinion, religious wars, icars
of independence, of conquest, or subjugation. In a mil-
itary sense they are either offensive or defensive. In
a political sense they are classified into external and
internal wars. Internal wars are further subdivided
into, 1st. Civil wars, in which the belligerent parties
are distributed over a large part of the territory of a
state ; the object being to secure a change of govern-
ment or laws, but not at the expense of national unity.
2d. Rebellions or insurrections, in which a portion of
the population of a state rises against the central gov-
200 OUTLINES OF INTERNATIONAL LAW.
eminent, sometimes with, the design of securing a sep-
aration from it, sometimes with a view to resist the
execution of harsh or oppressive laws, or measures of
administration.
5. The Belligerent Parties. The parties to a war
are called belligerents. Their operations must be car-
ried on in accordance with certain accepted usages,
which are sanctioned by all nations under the name
of the Laws of War.
Whenever a state occupies the position of a bellig-
erent, it is vested with all the rights, and charged with
all the obligations, incident to a state of war. The
parties to an internal war are also called belligerents.
They acquire belligerent rights so soon as the central
government decides to resort to warlike methods in
order to quell the insurrection. The recognition of
such rights by the central government, or by foreign
powers, in no way involves the recognition of the re-
bellious government as a separate political organiza-
tion. It only implies that the laws of war are to
prevail in the military operations undertaken for the
purpose of suppressing the rebellion, enforcing the
laws, and restoring the supremacy of the national gov-
ernment. In wars with, savages, and, to a certain ex-
tent, in wars with nations which do not acknowledge
the sanctions of International Law, it is impossible for
a state to be guided in all respects by the laws of war.
This is so because one of the belligerents, having a dif-
ferent standard of morals, or being without such a
standard, declines to recognize the rules of civilized
warfare. This does not absolve a civilized state from
its obligation to observe those laws ; it rather strength-
ens it, and it will be justified in resorting to retaliatory
WAR. 201
measures only when such measures are rendered abso-
lutely necessary by the barbarous or inhuman conduct
of its enemy.
6. Right of Declaring War, in whom Vested?
The right of declaring war is an essential attribute
of sovereignty. It is the act of the supreme govern-
mental authority of a state, and is limited in its exer-
cise, if at all, only by its constitution or fundamental
law. In former times this power was delegated to
colonial governments, and even to commercial compa-
nies ; at present, however, such delegation of authority
is no longer recognized, and the positive power of de-
claring war is held to be lodged exclusively in the
sovereign authority of a state. This does not prevent
distant dependencies from recognizing the fact of war,
if declared by another power ; and they may resist in-
vasion, or even carry the war into an enemy's country.
7. Causes of War. Although it falls within the
province of International Law to determine how war
between civilized states shall be carried on, and with
what formalities it shall begin and end, it is impossible
to deduce from the history of international relations
any precise rule for determining what fact, or facts,
shall constitute a just cause for Avar. It has been said
that a sovereign right of a state can be invaded, or
denied, only at the risk of war, and, in so far as Inter-
national Law is concerned, a state is legally justified
in regarding the denial of such a right as a sufficient
cause for war. The' question of determining whether
a particular cause of offence is, or is not, sufficient to
justify war, is strictly internal in character, and con-
cerns the offended state alone. "With the government
of that state rests the entire legal and moral responsi-
202 OUTLINES OF INTERNATIONAL LAW.
bility of decision. The efficient check upon a nation
in this respect mustjbe found in international public
opinion rather than in International Law.
Responsibility for a Resort to War. "While it is
technically true that a violation or denial of a perfect
right is regarded as a just cause for war, it is true
only because no other remedy is provided for the vio-
lation, by a state, of a rule of International Law. As
there is no authority above a sovereign state to which
it can appeal, it is of necessity compelled to redress,
by its own means, any injuries that it may receive
from another state. Not every denial of a perfect
right results in war, even when justice has been de-
manded and refused. Those in whose hands the gov-
ernment is must consider whether the injury that has
been received is sufficient, in amount or importance, to
counterbalance the evils that are involved in a resort
to war. The chance of success must be considered, as
well as the ability of the state to bear the burden of
long-continued hostilities.
Moral Considerations Involved. Certain moral con-
siderations are also involved in the decision, the re-
sponsibility for which no government can evade. " If
reparation can otherwise be obtained, a nation has no
necessary, and therefore no just, cause for war : if there
be no probability of obtaining it by arms, a govern-
ment cannot, with justice to their own nation, embark
it in war ; and if the evils of resistance should appear,
on the w T hole, greater than those of submission, wise
rulers will consider an abstinence from a pernicious
exercise of right as a sacred duty to their own sub-
jects, and a debt which every people owes to the great
commonwealth of mankind, of which they and their
WAR. 203
enemies are alike members. A war is just against a
wrongdoer when reparation for wrong cannot other-
wise be obtained ; but it is then only conformable to
all the principles of morality when it is not likely to
expose the nation by whom it is levied to greater evils
than it professes to avert, and when it does not inflict,
on the nation which has done the wrong, sufferings
altogether disproportioned to the extent of the injury.
When the rulers of a nation are required to determine
a question of peace or war, the bare justice of their
case against the wrongdoer never can be the sole, and
is not always the chief, matter on which they are mor-
ally bound to exercise a conscientious deliberation.
Prudence in conducting the affairs of their subjects is
in them a part of justice." '
8. Declaration of War, Ancient and Modern Rule.
In former times war was declared with great formali-
ties. This is no longer the case, the formal declaration
having ceased when the necessity for its existence had
passed away. When the relations of two states be-
come strained the fact is at once known throughout
the civilized world, and the subjects of the unfriendly
powers have sufficient time to arrange their business
affairs, and to accommodate their legal relations to the
changed conditions. When all attempts at peaceable
adjustment have failed, diplomatic intercourse ceases,
ministers are withdrawn, and the military and naval
forces of the belligerents are mobilized and placed
upon a war footing. So far as the opposing nations
are concerned, no further declaration is now necessary.
1 Mackintosh's Collected Works, p. 430, cited by Creasy, "First
Platform of International Law," pp. 362, 363.
204 OUTLINES OF INTERNATIONAL LAW.
Official Notification of an Intended Resort to War. .
Although the practice of making formal declarations
no longer obtains, a state which assumes a belligerent
attitude toward another is obliged to give public no-
tice of its intention in each of the following cases :
1st. To its own subjects ; 2d. To neutrals. This notice
is frequently given by proclamations, which contain a
statement of the cause of the war, and of the purposes,
or motives, for which it is undertaken. They also con-
tain the date after which a state of hostility will le-
gally exist. This is a matter of great importance, in
that it enables neutral powers to give effect to their
neutrality laws, to issue proclamations of neutrality,
and to fix the date upon which their neutral obliga-
tions become binding. ISTo declaration, or notice, is re-
quired from the state which acts on the defensive.
9. Effect of War upon Treaties of Alliance, Guar-
antee, and Subsidy. Treaties of alliance, of subsidy,
and of guarantee, made in anticipation of war, come
into effect the moment war is declared by, or against,
one of the allied states. Each state which is a party
to a treaty of alliance must decide for itself whether
the case contemplated by the treaty exists or not. If
its decision be affirmative, its obligations as an ally go
into effect immediately. If it decides in the negative,
its action cannot be constrained by any method short
of reprisals or war. The other allies, however, may
look upon its failure as a violation of treaty stipula-
tion, which they may regard as a just cause for war.
A treaty of subsidy obliges a state to grant such aid
in troops, supplies, or money as it may have stipulated
to furnish, either on formal notification, or when a par-
ticular state of affairs exists which was contemplated
WAR. 205
by the treaty. In this case, as in that of an alliance,
each contracting party decides for itself whether the
case exists which is contemplated by the treaty, and
each is fully responsible for its decision. The aid
agreed upon is furnished strictly in accordance with
the provisions of the treaty of subsidy, and the obliga-
tion incurred is fulfilled when the stipulated duty has
been performed. If the assistance proves inadequate
to the purpose, or if it be impossible of fulfilment, no
obligation rests upon the subsidizing state to render
other or further service of the same kind.
Treaties of guarantee, in so far as they relate to war,
usually consist in an obligation, assumed by one or
more states, to enforce respect for the neutrality of a
third state, or to assure the existence of such a state
within certain territorial limits. They become effec-
tive when the neutrality of the protected state is threat-
ened from any quarter, or when the guaranteed terri-
tory is invaded, or menaced with invasion. Subsidiary
treaties may also exist, providing in detail for interfer-
ence in either of these cases. If such treaties exist, they
must be strictly observed in making good the guarantee.
The effect of war upon treaties generally has already
been discussed. 1
10. Effects of a State of War. The direct effects of
a state of war are : 1st. To. place both the belligerent
states and their subjects in a condition of non-inter-
course with each other. 2d. Each citizen of one state
becomes the legal enemy of every citizen of the other.
This state is legal, not actual, for no subject of either
state can take the life of his enemy, or make captures
1 Ante, pp. 179, 180.
206 OUTLINES OF INTERNATIONAL LAW.
on land or sea, or do any hostile act, without the
express authority of his government. Commercial
intercourse between subjects of the belligerent states
becomes illegal. Contracts and other legal obliga-
tions are suspended during the continuance of hos-
tilities, and a similar rule is applied to partnerships
and other business arrangements. Shares in the public
stocks of either state, which are held in the territory
of the other, are not confiscated or forfeited. Interest
ceases to be paid at the outbreak of hostilities, but is
resumed at the peace, the interest accrued during the
war becoming payable at its close.
Citizens of one belligerent power in the territory of
the other at the declaration of war may be required to
depart, or may be permitted to remain, at the discre-
tion of the state in whose territory they are resident. 1
The latter course has been pursued in most recent wars,
and is the one most in accordance with the dictates of
humanity. This question has frequently been made
the subject of treaty stipulation. It is now generally
recognized, however, that such persons are not to be
made prisoners of war, and, if ordered to depart, they
are to be given a reasonable time for removal with
their property and effects. Subjects of the enemy who
are permitted to remain in a belligerent state may be
subjected to such special police regulation and super-
vision as may be deemed necessary by the government
for its security. For reasonable cause they may be
required to depart, or may be forcibly expelled. If
they give aid or information to the enemy, or to their
own government, they become subject to the laws of
1 Boyd's Wheaton, p. 366, note.
WAR. 207
war, and may be treated, according to the nature of
their offence, as prisoners of war, or as traitors or spies,
and may be punished accordingly.
The Property of Enemy's Subjects. The property
of enemy's subjects found within the territory of a
state at the outbreak of war is not confiscable. Debts
due an enemy's subject are suspended during the war,
but resume their obligatory character at its termina-
tion. " The right of the original creditor to sue for
the recovery of his debt is not extinguished by the
war, and revives in full force on the restoration of
peace." l " The debts due by American citizens to Brit-
ish subjects before the war of the Revolution, and not
actually confiscated, were judicially considered as re-
vived, together with the right to sue for their recovery,
on the restoration of peace between the two countries.
The commercial treaty of 1794: also contained an ex-
press declaration that it was unjust and impolitic that
private contracts should be impaired by national dif-
ferences ; with a mutual stipulation that neither the
debts due from individuals of the one nation to indi-
viduals of the other, nor shares, nor moneys which
they may have in the public funds, or in public or pri-
vate banks, shall ever, in any event of war or national
differences, be sequestered or confiscated." *
" Some writers have drawn a distinction between
debts due from a subject of one belligerent to a sub-
ject of the other, and debts due from a belligerent state
to subjects of the other. It is said that there exists a
right to confiscate the former, while the latter are to be
Boyd's Wheaton, p. 366.
Ibid., p. 367; Dallas, vol. ill, pp. 4, 5, 199-285.
208 OUTLINES OF INTERNATIONAL LAW.
exempt. The Confederate States acted upon this dis-
tinction, and confiscated all property and all rights,
credits, and interests held within the confederacy by
or for any alien enemy, except public stocks and secu-
rities. Lord Kussell strongly protested against this,
as being an act as unusual as it was unjust." 1
" But this is the only instance in recent times of such
measures having been adopted, and it is an example
that seems unlikely to be imitated. The confiscation
of private debts of any sort, besides exposing the state
doing so to retaliation, only cripples the enemy in a
very indirect way. It has no effect at all on the mili-
tary or naval operations of the war, and cannot, there-
fore, be justified on any principle." "
THE LAWS or WAR.
11. Character and Tendency of the Laws of War.
That department of International Law which treats of
the manner in which war shall be carried on by bellig-
erents, on land and sea, is called the Laws of War.
These laws are constantly changing, to adapt them to
the ever-changing conditions of modern warfare. The
tendency of these changes is, and always has been,
in the direction of greater humanity and liberality.
Harsh usages are modified, cruel practices become ob-
solete, or are abandoned by treaty or general consent,
and new methods are constantly suggested for dimin-
ishing the inevitable hardships of war. This improve-
ment is observable in all departments ; it is most re-
markable, however, in the treatment of individuals,
1 "Parliamentary Papers," 1862, "Correspondence Relating to
Civil War," p. 108. * Boyd's Wheaton, p. 3CS, note.
WAR. 209
combatant and non-combatant, and in the greater con-
sideration shown to the wounded and to prisoners of
war. There has been the least progress in the rules
relating to private property on land and sea. The
Declaration of Paris restrains the states who were par-
ties to it from capturing private property at sea, except
enemy goods in enemy ships and contraband of war.
The practice of privateering has declined, probably
never to be revived. In war on land pillage is sternly
forbidden, but private property may still be taken by
way of requisition. Contributions are still recognized,
and certain kinds of property may be captured and de-
stroyed, or regarded as booty. There are no indica-
tions, at present, that belligerents will voluntarily sur-
render any of the rights which they now exercise over
private property on land. In the few instances in
which such property has been exempted from capture
or requisition its immunity has been due to the fact
that, in those instances, rapidity of movement was an
essential condition of success, which could not have
been attained had the force employed, in the particular
undertakings, been compelled to depend for its subsist-
ence upon the slow and uncertain methods of requisi-
tioning supplies from an unwilling or hostile popula-
tion. The recommendations of the conferences at
Brussels and St. Petersburg illustrate these tenden-
cies. The declarations on the subject of combatants
and non-combatants, the treatment of wounded men
and of prisoners of war, are plain and positive in char-
acter, and commend themselves to all nations. Those
on the subject of private property are brief, obscure,
and unsatisfactory, reflecting but too clearly the opin-
ions upon that subject of those who framed them.
14
210 OUTLINES OF INTEKNATIONAL LAW.
12. Subjects Treated of in the Laws of War. The
Laws of "War have chiefly to do with the following
subjects :
(a.) The forces that may be employed in war, on
land and sea.
(b.) The methods of carrying on war.
(c.) The instruments that may be employed.
(d.) The rules regulating captures on land and sea.
(e.) The treatment of the public and private prop-
erty of the enemy.
(/.) The treatment of non-combatants in the thea-
tre of war.
(</.) The treatment of captured persons, or prisoners
of war.
(h.) The government of occupied territory.
(i.) The intercourse of belligerents in war.
13. The Amount and Kind of Force that may be Used
in War. International Law recognizes the fact of
war, and sanctions a resort to hostile methods to ob-
tain redress for an international wrong. It does not
sanction or approve acts of indiscriminate violence,
however, nor the use of force in excess of the precise
amount needed to redress the injury, or its continued
use after the legitimate purpose of the war has been
accomplished.
Legal Effects of a State of War upon the Subjects of
the Belligerent States. It has already been seen that
the existence of a state of war makes each subject of
one belligerent the legal enemy of every subject of the
other. An individual domiciled in a belligerent state
becomes an enemy, his property becomes enemy prop-
erty, and, as an enemy, he ceases to have a legal status
in the courts of the hostile state. This is a consequence
WAR. 211
of the relation of the belligerent states to each other.
The states are at war, and so the individual units who
compose them must share the same hostile relation.
This state of individual hostility, however, is legal, not
actual, and does not of itself justify a subject of either
state in taking the life of an enemy, in making capt-
ures, or in doing any act of hostility whatsoever.
Upon this point the international usage is plain. No
individual is permitted to commit any hostile act, save
in self-defence, without the positive, express authoriza-
tion of his government. Whoever undertakes an act
of hostility without such authorization does so at his
peril, and if captured is not entitled to the protection
of the laws of war.
Who may Lawfully Carry on War. In general
war is carried on by the regular armed force of each
belligerent power. The character of that force, and
its composition, are internal questions, to be deter-
mined by the municipal law of every state. In addi-
tion to its regular armed force a state may call into
its service, for the period of the war, or for a shorter
term, such additional forces as it may deem necessary
to prosecute the war successfully. This force may
consist of conscripts, of volunteers, or of such militia
or reserve forces as are, or may be, provided for by its
constitution and laws. This force must, in general, be
organized and disciplined, commanded by responsible
officers, and should either be uniformed, or. required to
wear some distinguishing mark or badge by which its
members may be recognized and known.
" Partisans are soldiers, armed, and wearing the uni-
form of their army, but belonging to a corps which
acts detached from the main body, for the purpose of
212 OUTLINES OF INTERNATIONAL LAW.
making inroads into the territory occupied by the en-
emy. If captured they are entitled to all the privi-
leges of the prisoner of war." '
A Levee en Masse is a general rising of the popula-
tion of a state to resist an invader. Such risings usu-
ally take place with the consent, and by the direction,
of the government of the invaded state, and there may
or may not be time for the movement to be organized
and regulated by the government. In such cases the
question arises : Are the individual members of such a
body entitled, if captured, to be treated as prisoners
of war? The weight of opinion is that they are,
so long as they observe the laws of civilized war in
conducting their operations. Two views have been
entertained upon this subject. One, maintained by
states having large standing armies, and whose mili-
tary operations are more likely to be offensive than
defensive, holds that such risings are unauthorized.
This view is largely influenced by self-interest. The
other, held by states maintaining small military estab-
lishments, and so more concerned with defensive than
offensive operations, justifies them on the grounds of
necessity and self-defence. The latter view is now
held by the greater number of states. Of those which
maintain the former opinion the two most important,
Prussia and Eussia, have each, at different times, au-
thorized such risings during invasions of their terri-
tories. 2
At the Brussels conference, in 1874, a proposition
1 General Orders No.100 of the U. S. War Department, Series of 1863.
2 Prussia in 1807, during the Napoleonic wars. Russia in 1700,
and again in 1812. On the former occasion to resist Charles XII. ,
and on the latter to resist Napoleon.
WAR. 213
was submitted requiring such general levies to con-
form to certain conditions, in order to secure for them
the protection of the laws of war. These conditions
were:
" Art. IX. 1. That they have at their head a person
responsible for his subordinates.
" 2. That they wear some distinctive badge recog-
nizable at a distance.
" 3. That they carry arms openly ; and,
" 4. That, in their operations, they conform to the
laws and customs of war. In those countries where
the militia form the whole or a part of the army they
shall be included under the denomination of army.
"Art. X. The population of a nonroccupied terri-
tory, who, on the approach of the enemy, of their own
accord take up arms to resist the invading troops, with-
out having had time to organize themselves in con-
formity with article IX., shall be considered as bel-
ligerents, if they respect the laws and customs of
war." l
The effect of these rules is made to depend upon
the meaning attached to the term "occupied terri-
tory," as used in a previous article. It is defined in
article I. to be " territory actually placed under the
authority of the hostile army. And the occupation is
declared to extend to those territories where this au-
thority is established and can be exercised." 2 The
construction of the term is left to the belligerent in-
vader, and, so long as the views held upon the subject
of occupation are so divergent as they are at present,
"Proceedings of Brussels Conference," 1874, articles ix. and x.
Ibid. , article i.
214 OUTLINES OF INTERNATIONAL LAW.
it is extremely unlikely that the rules of the confer-
ence, humane as they are in many respects, will receive
general international sanction.
The term guerilla is applied to persons who, acting
singly or joined in bands, carry on operations in the
vicinity of an army in the field in violation of the
laws of war. They wear no uniform, they act with-
out the orders of their government, and their opera-
tions consist chiefly in the killing of picket guards and
sentinels, in the assassination of isolated individuals
or detachments, and in robbery and other predatory
acts. As they are not controlled in their undertak-
ings by the laws of war, they are not entitled to their
protection. If captured, they are treated with great
severity, the punishment in any case being propor-
tioned to the offence committed. Their operations
have no eifect upon the general issue of the war, and
only tend to aggravate its severity. Life taken by
them is uselessly sacrificed, and with no corresponding
advantage. 1
14. Forces that may not be Used in War. In carry-
ing on military operations against a belligerent, a state
may not use, as a part of its armed force, any persons
or corps that are not, or cannot be, subjected to mili-
tary discipline, or who cannot be restrained from com-
mitting acts of cruelty in violation of the laws of war.
This restriction prohibits the use of bodies of troops
composed of individuals of savage or semi - civilized
races, whose cruel instincts lead to the perpetration of
all sorts of barbarities. A general who finds the force
of his enemy composed of such elements is justified in
1 Halleck, vol. ii., p. 7; also p. 8, note.
WAR. 215
resorting to retaliatory methods to compel its discon-
tinuance. 1
15. Wars with Savages. Civilized states, in carrying
on necessary wars with barbarous races, or against na-
tions which are partly civilized, but who do not under-
stand, and so fail to observe, the laws of war, have
peculiar duties and responsibilities toward such oppo-
nents. Their irregular and barbarous usages should
be carefully studied, and the operations undertaken
against them should be so planned and arranged as to
render it impossible for serious violation of the laws of
war to occur. The task is not one of serious or partic-
ular difficulty. Barbarous nations yield only to supe-
rior force or superior cunning. They violate the rules
of civilized warfare chiefly in their cruel treatment of
wounded and unwounded prisoners, and in their ten-
dency to indiscriminate slaughter, pillage, and destruc-
tion while passing through inhabited districts. To
remedy this, the forces employed against them should
be sufficient in amount to accomplish the legitimate
purpose of the war as expeditiously as possible. Forces
inferior in strength to the enemy should never be em-
ployed. "Wounded men should not be permitted to fall
into their hands ; straggling should be rigidly prohibit-
ed ; small, isolated parties should not be employed be-
yond the lines of the army, and the tactical units of
the invading force, in all marches and military opera-
tions, should be required to keep within supporting
distance of each other.
16. Forces Employed at Sea. In conducting naval
1 To this class belong the Bashi-Bazouks, employed by Turkey
and some of the Cossack mounted forces in the service of Russia.
216 OUTLINES OF INTERNATIONAL LAW.
operations and in effecting captures at sea, a state
makes use of its public armed vessels, manned by the
officers and men of its regular naval establishment.
Its naval force may be increased, both in sliips and
men, by methods similar to those resorted to to in-
crease its military strength. It may also make use of
privateers.
Privateers are armed vessels, commanded by private
persons, who receive a commission from a belligerent
government authorizing them to make captures of en-
emy ships and goods on the high seas. These com-
missions are called Letters of Marque.
Letters of Marque and Reprisal are commissions of
a somewhat similar character, which were formerly
issued to private persons, authorizing them to make
captures by way of reprisal, and in satisfaction for
some injury done them by an offending state. The
practice is now obsolete.
Although the practice of privateering is still sanc-
tioned by International Law, it seems hardly probable
that it will be extensively resorted to in future wars.
Its defence has been that it enabled a state which,
from policy or want of means, maintained a small
standing navy, to make a great and sudden increase
in its naval force at the outbreak of war. This in-
crease, however, was attended with serious disadvan-
tages. The force of privateers could only be used to
effect captures of unarmed merchant ships. It was
never available for general naval operations, and the
damage done to the enemy, however great, was at best
but indirect, and did not have the effect of weakening
his military power. The belligerent employer of pri-
vateers incurred the same responsibility for captures
WAR. 217
made by these cruisers as it did for those made by its
public armed vessels, while its control over their offi-
cers and creAvs was, at best, but feeble and indirect.
It had but little security against their aggressions upon
neutral rights, while it was absolutely responsible for
acts done by them in their exercise of the right of
search upon neutral vessels. As neutral rights stead-
ily increase, and are more and more strongly insisted
upon by neutral nations, the exercise of belligerent
rights against them becomes constantly more difficult,
involving a knowledge of International Law which is
rarely possessed by the commanding officers of private
armed vessels, and presenting questions of the greatest
intricacy and difficulty, which require in their decision
the fullest knowledge of the rights and responsibilities
of belligerents and neutrals. For these reasons the
practice of privateering, which had always been re-
garded with disfavor, has within the last half century
been much less frequently resorted to than formerly.
Those states whose policy it is to maintain small naval
establishments in time of peace find it possible to in-
crease them, at the outbreak of war, by a resort to
methods similar to those made use of in increasing
their land forces. Ships are purchased or chartered
by the government, and the vessels thus acquired are
placed under the command of regular naval officers.
Over this force the control of the government is abso-
lute and complete. It possesses the advantage that it
can be used in all sorts of maritime undertakings, and
is not restricted in its operations to the capture of un-
armed merchant vessels.
The practice of privateering has been very much re-
stricted by the operation of the rules of the Declara-
218 OUTLINES OF INTERNATIONAL LAW.
tion of Paris, which will be discussed under the head
of maritime capture.
17. Effect of Modem Inventions, and of Improved
Methods of Attack and Defence. The discovery of
new methods of attack ,and defence, and the improve-
ments which have been made in the range and effi-
ciency of artillery and small arms since the middle of
this century, have served to mark an epoch in the his-
tory of modern war. Standing armies and navies are
now maintained at a point in numbers, training, and
efficiency never before reached, or even attempted, and
at an expense which absorbs no inconsiderable portion
of the revenues of most modern states. These causes
combined have so increased the cost and destructive-
ness of war as to render its occurrence less frequent,
and to materially shorten its duration, while, by re-
ducing the time during which operations are carried
on, and territory occupied by invading armies, they
have contributed powerfully to restrict its most inju-
rious effects.
18. Methods of Carrying on War. With the stra-
tegical and tactical methods resorted to by trained and
disciplined armies in their operations against each oth-
er, International Law has but little to do. Such op-
erations must be carried on in accordance with the
principle that no forcible measures against an enemy
which involve the loss of human life are justifiable
which do not bear directly upon the object for which
the war is undertaken, and which do not materially
contribute to bring it to an end. International public
opinion severely judges useless and unnecessary ope-
rations, and sharply criticises mistakes and blunders
which might have been avoided by a reasonable exer-
WAR. 219
cise of foresight and skill, and fixes the responsibility
of error, in just proportions, upon the governments
which authorize such measures and the generals who
execute them.
19. Rule of Good Faith Use of Deceit. No meas-
ures can be resorted to against an enemy in war which
involve a breach of good faith. An attack cannot be
condemned, or complained of, because it partakes of the
character of a surprise, because it is the duty of a bel-
ligerent to exercise such due vigilance as will render
such measures abortive. Deceit, in the form of circu-
lating false information in order that it may fall into
the hands of the enemy, is justifiable, because it is the
enemy's duty to Aveigh carefully the sources from which
he receives intelligence. The services of traitors and
deserters may be accepted, and the employment of
spies for the purpose of obtaining information is legit-
imate, but no person can be compelled to act as a spy.
The poisoning of wells and springs is prohibited, as it
ever has been since the laws of war came into exist-
ence. The food and water supply of a besieged place
may be shut off, however, with a view to hasten its
surrender.
20. The Attack of Places. In the attack of places
a distinction is made between forts or fortified places,
and what are called open, or undefended towns. The
latter, if they offer no resistance, cannot be attacked.
On the contrary, it is the first duty of the command-
ing general of the force occupying them to prevent
pillage, and to insure public order and the protection
of private property. Fortified places may be taken by
open assault, or may be reduced by regular siege oper-
ations. If an open assault be attempted, no notice is
220 OUTLINES OF INTERNATIONAL LAW.
given, as surprise in such an operation is an essential
condition of success. The very fact of war is a suffi-
cient notice to the non-combatant inhabitants of such
places that an attack is at least a probable contingen-
cy. If they continue their residence it is presumed
that they do so with full knowledge that the place
may become the centre of active military operations.
It should be remembered in this connection, how-
ever, that peace is the normal state of mankind, and
that other than military conditions now prevail in the
location, growth, and development of cities and towns.
This fact must be recognized by belligerent states, and
by their generals commanding in the field. There is
scarcely a fortified place now in existence which does
not contain a large contingent of non-combatant pop-
ulation, composed, in great part, of persons whose cir-
cumstances are such as not to permit them to change
their residence at will. This fact is now considered,
in the fortification of important centres, by placing
the defensive works beyond the range of siege artil-
lery. The claims of these defenceless persons should
constantly be borne in mind by all those who have to
do with siege operations, the duty of consideration
falling with equal force upon besiegers and besieged.
No measures directed against a besieged place are jus-
tifiable which are calculated to increase, unnecessarily,
the hardships of their already distressing condition.
The improved methods of conducting siege operations
make it possible to neutralize fortified places by close
investment, and to reduce them by restricting the at-
tack to the defensive works alone. Commanding offi-
cers of such places are not justified in persisting in
the defence when the burden of such defence begins
WAR. 221
to bear with, deadly effect upon their non-combatant
population.
Duty of a Commanding Officer of a Besieged Place
in the Matter of Surrender. The questions of defence
in the case of a garrisoned fort and a fortified town
are by no means the same. Duty may require a com-
mander in the former case to resist to the last ; in the
latter considerations of humanity enter into the prob-
lem of defence, and great weight must be attached to
them when the question of surrender is presented to
him for decision.
In former times there were instances in which the
commanding officer of a besieged place incurred some
penalty by protracting his defence beyond the time
when such defence could be maintained with any rea-
sonable chance of success. This is no longer the case.
The defence of a place is a question over which a be-
sieger has no control. The commanding officer of the
besieged place may therefore protract his defence so
long as any military advantage accrues to his own
government by so doing. When no such considera-
tions are involved, however, and the question of de-
fence is limited to the place itself, a commander is jus-
tified in continuing it so long as any hope of success
remains. "When, in his opinion, it can no longer be
hopefully maintained, any further sacrifice of life is
unwarranted, and it becomes his duty to surrender.
This is a duty which he owes to his country, and to
the men under his command, and not to the enemy.
If his force is sufficient to justify him in such an un-
dertaking, it is proper for him to make the attempt to
cut his way out. Whenever he surrenders he is enti-
tled to demand, for himself and for his command, the
222 OUTLINES OF INTERNATIONAL LAW.
rights of prisoners of war, and his enemy is not justi-
fied in refusing to grant him such rights, still less in
threatening to deny quarter to himself or his garrison.
On the other hand, should he blindly refuse to surren-
der when defence is no longer possible, and so compel
his enemy to take the place by assault, he cannot com-
plain of any loss of life that may legitimately ensue,
nor can he expect his antagonist, in the heat of an at-
tack, to recognize his tender of surrender, when the
time for such tender has passed away. 1
21. Use of the Enemy's Uniform and Flag. It is
forbidden in war on land to make use of the enemy's
flag for purposes of deceit. It is also forbidden to use
the enemy's uniform except w T ith some distinguishing
mark, sufficiently striking in character to attract at-
tention at a distance. On the sea the national flag of
a public armed vessel must be displayed before an en-
gagement begins, or a capture is made. These rules
are based on the fact that flags and uniforms are used
for the purpose of determining the national character
of troops in the field. A violation of these rules indi-
cates a want of good faith, a quality equally obliga-
tory in peace and war.
22. Giving and Receiving Quarter, and Treatment
of Individuals of the Enemy j Forbidden Practices.
A belligerent cannot refuse to give quarter, nor can
he announce his intention to give no quarter, except
1 The Duke of Wellington, in a despatch to Mr. Canning bearing
date of Feb. 3, 1820, maintained the view that the garrison of a be-
sieged place that refused to surrender could be put to the sword.
It is to be said to his credit, however, that he never applied the rule
in practice. " Wellington Despatches," vol. i. , p. 80, cited by Creasy,
p. 452.
WAR. 223
in case of some conduct of the enemy in gross viola-
tion of the laws of war, and then only in the way of
retaliation for similar acts. The practice of firing
upon outposts, picket-guards, and sentinels, except for
the purpose of driving them in during a reconnoissance,
or as a preliminary to a general advance, is strictly
forbidden. These individuals of the enemy are partic-
ularly helpless. They take no part in operations of
an aggressive character, and are always ordered not to
attack. They are to resist only when themselves at-
tacked, and yield ground only to a superior force of
the enemy. The rules of war forbid the robbery of
individuals of the enemy who fall into the hands of a
belligerent. Their clothing and private property are as
secure from violent appropriation as are those of non-
combatant citizens ; arms and articles of public prop
erty in their possession become the property of the
captor's government never the private property ef an
individual. The wounding of prisoners, or the inflic-
tion of additional injuries upon those already wound-
ed and helpless, is discountenanced upon pain of death,
as offensive alike to humanity and the rules of civil-
ized warfare. The power of these persons to do harm
has been destroyed by the fact of wounding, or capt-
ure, and their helpless and distressing condition enti-
tles them to the most considerate treatment. A sim-
ilar reason forbids the use of forcible measures against
prisoners with a view to extort from them information
as to the force, positions, or intentions of the enemy.
23. Instruments of War. In no department of hu-
man endeavor has greater ingenuity been displayed,
in recent times, than in the invention and improve-
ment of arms, projectiles, and other instruments of
224: OUTLINES OF INTERNATIONAL LAW.
war. Their destructive power has kept pace with the
increase in their range and efficiency, and with the
rapidity with which their fire can be delivered. The
result has been to make war so destructive as to short-
en its duration, and so to materially diminish the losses
incurred in proportion to the forces engaged on either
side.
It is not an objection to a weapon or projectile that
it is merely destructive. All instruments of war have
that character, some of them to a remarkable degree.
That one weapon or projectile is more destructive than
another simply means that the belligerent adopting it
has, to the extent of its superior destructive power, a
legitimate advantage over his adversary. The decision
as to whether a particular instrument may, or may not,
be employed in war will depend upon the wound or in-
jury caused by its use. If the wound produced by it
causes unnecessary suffering, or needless injury, it is to
be rejected, otherwise not. This rule is applicable to
all instruments of whatever character, whether weap-
ons or projectiles, which may be used in war. The
application of this rule forbids the use of cutting or
thrusting weapons which have been poisoned, or which
are so constructed as to inflict a merely painful wound.
To this class belong arrows with easily detached heads,
etc. The recommendations of the St. Petersburg Con-
ference upon the subject of explosive projectiles, for-
bidding the use of projectiles weighing less than four
hundred grammes (twelve ounces avoirdupois), has re-
ceived the general sanction of civilized nations. The
adoption of this rule renders unlawful the use of ex-
plosive bullets in small arms.
The use of hot shot, and of chain and bar shot, has
WAR. 225
been regarded as questionable by some authors, appar-
ently because their purpose and use was not fully un-
derstood. Hot shot were used in engagements between
forts and wooden ships with a view to set fire to the
latter. Their use would still be authorized for the
same purpose. Chain shot and bar shot were used in
naval engagements for the purpose of cutting away
standing rigging and spars. For these objects their
continued use would be lawful. As it is impossible to
use either form of projectile in modern rifled guns, and
as they would be alike ineffective against modern iron-
clads, which have no standing rigging, they are now
practically obsolete.
Torpedoes, as instruments of both offensive and de-
fensive warfare, have come into general use within the
last twenty -five years. That their use has received
general sanction is shown by the energetic measures
which have been taken by most modern states to equip
their navies with them, and to adopt them as an im-
portant auxiliary in their systems of coast defence.
Military mines, which greatly resemble them in pur-
pose and destructive effect, have been regarded as an
essential feature of all systems of permanent fortifica-
tion since the days of Vauban, and the art of counter-
mining in siege operations has kept pace with the de-
velopment of military mining as a means of offensive
warfare. This is likely to be the case with torpe-
does. As new forms are devised, and new methods of
applying them are invented, corresponding means of
counteracting their effects Avill be discovered, with the
result, it is hoped, of restricting within the narrowest
limits their terribly destructive effects. On the other
hand, if their offensive use should prove to be capable
15
226 OUTLINES OF INTERNATIONAL LAW.
of indefinite development, and if the coasts and har-
bors of a state be so skilfully defended with torpedoes
and submarine mines as to make it practically impos-
sible for hostile fleets to approach, then the object of
the state in defending its ports will have been com-
pletely attained, in securing to the inhabitants of its
sea-coast towns a practical immunity from hostile at-
tack.
23. Usages of War at Sea. The usages of war at sea
are the same in substance as those on land, although,
from the circumstances of the case, they are much sim-
pler of application. The same rules apply as to giving
and receiving quarter, and as to the treatment of
wounded and unwounded prisoners of war. The crews
of captured merchant vessels of the enemy are made
prisoners of war. When neutral vessels are seized for
carrying contraband, or for attempting to violate a
blockade, their crews, not being belligerents, are not
subject to confinement as prisoners of war, unless by
their conduct they render such restraint necessary.
24. The Public and Private Property of the Enemy
Treatment of Property on Land. The property of an
enemy on land may be classified into public and pri-
vate. Public property is again classified into 1. Prop-
erty of a military character, or susceptible of appro-
priation to military use. To this class belong forts,
arsenals, dockyards, magazines, and military stores
of all kinds. 2. Money and movables of all kinds be-
longing to the belligerent government as proprietor.
3. Property essentially civil, or non-military in charac-
ter, and used for religious, charitable, scientific, or ed-
ucational purposes. The two former may be captured
and destroyed, or converted to the military use of the
WAR. 227
enemy. The latter is now exempt from seizure, and
should be protected by a belligerent if situated in, or
near, the theatre of active operations. 1
25. Private property is classified into real and per-
sonal. Real property, whether consisting of land or
buildings, is exempt from seizure or destruction, except
as a direct necessity of military operations. It may be
occupied or used, and during such occupation should be
protected from all needless injury and damage. Per-
sonal property is divided into 1. That which is suscep-
tible of direct military use by a belligerent. To this
class belong pack, saddle, and draft animals, means of
transportation of all kinds, cattle, fuel, provisions and
food products, medicines, forage, cloth, leather, and
shoes ; in general all articles of wear and supply for
men and animals. 2. That which is not susceptible of
direct military use'; including money, works of art,
furniture, valuables, clothing, and articles of general
merchandise. The former may be captured, or taken
by way of requisition ; the latter is exempt from capt-
ure or confiscation. If such property be taken by way
of pillage, the act is severely punished. The taking of
private property within the limits here described is
sanctioned by the law of nations. It is sometimes paid
for, more frequently, perhaps, now than formerly, but
when compensation is made, it is dictated rather by
motives of policy than justice. Illiberal and unjust as
the practice may be, it is universally recognized, and so
receives the unwilling sanction of International Law.
The army regulations of all nations provide specifi-
cally, and in great detail, for the maintenance of their
1 Hall, pp. 139-141; Halleck, vol. ii., 12, 13.
228 OUTLINES OF INTERNATIONAL LAW.
troops in the enemy's territory, by supporting them,
wholly or in part, on the country, and prescribe the
methods of quartering troops, and of collecting and
distributing subsistence and forage. 1
26. Requisitions are the formal and regular levies
of supplies, made by an invading army for its support,
in accordance with the municipal laws and army reg-
ulations of the state to which it belongs. These laws,
regulations, and orders prescribe the methods in ac-
cordance with which the requisitions are to be made.
The articles to be paid for, if there be any such, the
tariffs, or rates of payment, and the cases in which re-
ceipts are to be given, are stated in such regulations
and orders. They also contain provisions denouncing
pillage, and prescribing punishments for that and other
unauthorized taking of enemy property.
Receipts should always be given. They are of im-
portance, as payments, whether made by the invaders'
government or their own, are based upon them ; and,
if not taken up and paid, they may serve to mitigate,
the severity of future requisitions by the same invader.
Requisitions may be made by commanding officers of
any grade, but always in strict accordance with law
and regulations. Unauthorized requisitions are usually
regarded as acts of pillage, and are punished accord-
ingly.* A question arises as to whether a belligerent
can compel the personal services of individuals of the
population of the invaded territory. Such services may
be voluntary, either on the part of individuals or cor-
1 Hall, pp. 139-141; Halleck, vol. ii., 12, 13.
9 Art. 18, Brussels Conference; Halleck, vol. ii., pp. 92, 114; Hall,
pp. 361-363; Heftier, p. 237; Boyd's Wheaton, p. 411 note; "United
States Instructions," 44.
WAR. 229
porations, and, if so, are paid for when rendered. "With
these International Law has nothing to do. The right
of a belligerent to take means of transportation, by
way of requisition, has always been asserted, and almost
invariably acted upon. This involves the right to
compel the services of drivers and teams, and also of
railway, steamship, and telegraph companies, and of
blacksmiths, carpenters, and other tradesmen. These
services must be obtained by force, as the duty of a
citizen to his own government forbids him to render
voluntary service to the enemy. The question of pay-
ment is discretionary with the belligerent employer,
and, as in the case of other requisitions, is rather a
matter of policy, or expediency, than of strict justice. 1
The policy of the United States in the matter of
requisitions has been far from liberal. At the begin-
ning of the campaign in Southern Mexico, General
Scott was directed to subsist his troops in the enemy's
country. Upon the urgent remonstrances of that offi-
cer as to the injustice and impolicy of such a course,
the order was rescinded, and the regulation of the mat-
ter left to the discretion of the general commanding
in the field. He therefore directed reasonable prices
to be paid for such articles as were needed for the
subsistence of his army, and experienced so little diffi-
culty in obtaining them as to make a resort to requi-
sitions unnecessary. During the war of the rebellion
1 In January, 1871, the Germans, "who were then in military occu-
pation of Xancy, required the services of five hundred laborers upon
a work of repairing the railway of considerable importance to
the success of their operations. Notice was given that if they were
not forthcoming, at the time indicated, a certain number of the offi-
cers and employees would be seized and shot. Hall, p. 364.
230 OUTLINES OF INTERNATIONAL LAW.
generals in the field were authorized to seize such arti-
cles of subsistence, or forage, as were needed by their
commands. For the property thus taken receipts were
to be given, payable at the end of the war, upon proof
of loyalty. If such proof were not produced, no pay-
ments were to be made. This amounted, in fact, to
the taking of enemy's property without compensation.
27. Contributions. Contributions are levies of mon-
ey or supplies, made by the authority of a belligerent
government, through the commander-in-chief of its
armies in the field. They are levied upon the prop-
erty, or taxable resources, of a city or district of terri-
tory. They are usually assessed, collected, and paid
by the local authorities, upon the formal demand of
the invading general. If the amount of the contribu-
tion be not paid, or delivered, at the specified time, the
invader takes such measures as he may deem necessary
to enforce his decree. Unlike requisitions they are never
refunded, or reimbursed, by the belligerent who levies
them, though they may be deducted from the amount
of an indemnity proposed to be levied by a conquer-
ing invader in the preparation of the treaty of peace.
28. Captured Property on Land. Public property
on land, and in some instances private property also,
may be captured by a belligerent. Such captured
property is called booty. It consists of all public prop-
erty that is susceptible of capture in war, and of such
private property as is susceptible of direct military
use. In strictness all articles that may be obtained
by way of requisition fall under the head of booty.
Aside from the articles obtained by requisition, booty
may consist of arms, ammunition, provisions, and mil-
itary supplies of all kinds, and of all public and pri<
WAR. 231
vate property captured in battle, or as a direct result
of military operations. 1 As is the case with all prop-
erty which may be captured in war, on land or sea,
the title first vests in the captor's government. Such
title is held to be complete after twenty-four hours of
actual possession, upon the presumption that secure
possession will be obtained within that time. The capt-
uring government may make such disposition of this
captured property as it deems best. It may convert
it to its own use ; it may cause it to be sold, and may
appropriate the proceeds of the sale to governmental
uses ; or it may decree thte whole, or a part, to the act-
ual captors as a reward for their services. The British
government, in certain cases, recognizes and rewards
such services. The government of the United States
has adopted the contrary rule, and appropriates to its
own use all property captured by its armies on land.
The rules regarding booty, and those regarding the t
treatment of private property seem to be in conflict.
They are not so in fact. Private property on land,
however great in amount, is exempt from capture ex-
cept it be susceptible of direct military use by a bel-
ligerent, or contributes directly to the support and
maintenance of his armies. Arms, ammunition, equip-
ments, and all sorts of military stores, clothing, or cloth
suitable for uniforms, shoes, leather, blankets, medi-
cines, and food and forage supplies of all kinds, are
susceptible of such appropriation. Money, except by
way of contribution, clothing and cloth not adapted
1 For the latest authoritative discussion of this subject see the
article, "The Right of Booty in General, and especially the Right
of Maritime Capture," by Professor Bluntschli, in the Revue de
Droit International, vol. ix. (1877), p. 508.
232 OUTLINES OF INTERNATIONAL LAW.
for use as uniforms, and all other products, manufact-
ures, and commodities, are exempt from capture, and
are entitled to protection by the laws of war.
29. Treatment of Non- Combatants in the Theatre of
War. It has been seen that the subjects of two bel-
ligerent states become enemies at the outbreak or dec-
laration of war. They continue in this hostile relation
during its continuance. This status does not author-
ize them to commit acts of hostility, however, which
can only be undertaken by persons having the express
authorization of the belligerent governments. The
rest of the population of a belligerent territory are
not only forbidden to take an active part in military
operations, but are entitled to personal immunity and
protection so long as they refrain, in good faith, from
taking part in the war. A portion of their property
may be taken, with or without compensation, their
houses and lands may be occupied, and injured, or pos-
sibly destroyed, as a matter of military necessity ; but
their persons, and such of their property as is not con-
fiscable by the laws of war, are, by the same laws, com-
pletely protected. Any offence committed against
them, or their property, is an offence against the laws
of war, and is promptly and severely punished. This
exemption from the operations of war they continue
to enjoy so long as they take no active part in hostile
operations. If they act with the authority of their
government, they become a part of its military force,
and are treated accordingly. If they act without such
authorization, and in violation of the usages of war,
they are no longer protected, but are punished accord-
ing to the nature and degree of their offence.
A combatant is a person who, with the special au-
WAR. 233
thorization of his government, takes part, either direct-
ly or indirectly, in the operations of war. The term
includes, in addition to the troops of the line, all staff
officers, surgeons and chaplains, officers and employees
of the supply and transport service, all agents, con-
tractors, and others who accompany the army in
an official capacity, and who assist in its movement,
equipment, or maintenance; and all retainers to the
camp.
A non-combatant is a resident of a belligerent state
who takes no part in the war. He is not subject to
the laws of war, and is protected by them, in his per-
son and property, so long as he refrains from partici-
pation in military operations.
30. Prisoners of War. A prisoner of war is a com-
batant who, by capture or surrender, falls into the
hands of an enemy. In strictness an enemy has the
right to make prisoners of those persons only whom
he may lawfully kill in war. In practice, however,
the former class is much more numerous than the lat-
ter. This is because the right of making prisoners,
as now exercised, inflicts no particular hardship upon
the captured person; while his detention, as a pris-
oner, may serve to materially injure the enemy, by
impeding him in his military operations, or by inter-
fering with the efficient administration of his govern-
ment. For this reason "he may capture all persons
who are separated from the mass of non-combatants
by their importance to the enemy's state, or by their
usefulness to him in his war. Under the first of these
heads fall the sovereign and the members of his fami-
ly when non-combatants, the ministers and high of-
ficers of the government, diplomatic agents, and any
234 OUTLINES OF INTEKNATIONAL LAW.
one who, for special reasons, may be of importance at
a particular moment." '
Treatment of Prisoners. So soon as an individual
of the enemy ceases his armed resistance he becomes
vested with all the rights of a prisoner of war. The
right to injure him is, at that instant, changed into the
duty of protecting him, and of preventing his escape.
The public property and arms found in the possession
of a prisoner, at the time of his capture, become the
property of the capturing state. His private property
is respected, and secured to him, by the usages of war.
Were it not so protected every consideration of honor
and humanity should deter his captor from any act of
aggression toward one who, from his situation, is una-
ble to defend himself.
Prisoners are usually sent to the captor's state, or
are removed to points at a distance from the actual
theatre of war, where they can be securely held. They
are fed and clothed at the expense of the captor's gov-
ernment. They are entitled, in addition to proper food
and clothing, to medical attendance, and to a reasona-
ble allowance of fuel, quarters, bedding, and camp equi-
page. They are subject to such measures of restraint
as are necessary to their safe keeping ; and are held to
the observance of such sanitary and police regulations
as are made necessary by their confinement. The rules
1 Hall, p. 341. The practice has become quite general of releasing
surgeons and sometimes chaplains left with the wounded on the
field of battle, so soon as their duties have been performed. This
is done, or not, at the discretion of the captor, however, and cannot
be claimed or demanded as a right. This subject is now regulated
by the terms of the Geneva Convention, to which the principal
states of Christendom are partiea
WAR. 235
of war authorize a belligerent to require them to per-
form a certain amount of labor, as a reimbursement of
the cost of their support. Xo labor may be required
of them, however, that is calculated to assist the cap-
tor, directly, in his military operations. In recent times
the practice has been to require no services of pris-
oners of war except such as have contributed directly
to their comfort and welfare.
Prisoners of war are not guilty of a crime in having
defended their country. Their confinement, therefore,
cannot assume a penal character, but must consist in
such measures of detention as will secure them against
danger of escape. A prisoner of war, in attempting
to escape, does not commit a crime. It is his duty to
escape if a favorable opportunity presents itself. It
is equally the duty of his captor to prevent his escape,
and he is justified in resorting to any measures, not
punitive in character, that will best secure that end.
A prisoner of war may be killed in attempting to es
cape. If recaptured his confinement may be made
more rigorous than before.
According to the present rule of International Law
the status of a prisoner of war may be terminated
1. By exchange ; 2. By ransom ; 3. By the treaty of
peace at the end of the war.
Exchange of Prisoners. The exchange of prisoners
between belligerents is made in accordance with agree-
ments, entered into for that purpose, called cartels. The
making of such agreements is purely voluntary, and
cannot be constrained by subjecting prisoners to spe-
cial hardships. The time, place, and method of ex-
change are fully detailed in the cartels, the provisions
of which are always strictly construed. The basis of
236 OUTLINES OF INTERNATIONAL LAW.
exchange is usually that of strict equivalents, man for
man, rank for rank, disability for disability. The ex-
changeable values of the different grades of officers
and non-commissioned officers are established, and ex-
pressed in terms of private soldiers. Numbers are then
computed for exchange upon the basis thus agreed
upon. An excess on either side may constitute a
credit, or may be extinguished by a payment of money.
Prisoners of war who escape from confinement, or
who are exchanged, are by such acts revested with all
the rights of belligerents. The binding force of car-
tels, like that of all other agreements between bellig-
erents, rests upon the good faith of the contracting
parties. If the terms of a cartel are violated by one
belligerent ,they cease to ,be obligatory upon the other.
31. Paroles. A parole is a promise, either verbal
or written, made by an individual of the enemy, by
which, in consideration of certain privileges or advan-
tages, he pledges his honor to pursue, or refrain from
pursuing, a particular course of conduct. Paroles are
ordinarily received only from officers, and, when nec-
essary, are given, by officers, for the enlisted men of
their commands. They are accepted from ' enlisted
men only in exceptional cases. Paroles are given by
officers to secure greater freedom of movement, or. to
obtain special privileges, while held by the enemy as
prisoners of war. These may, or may not, be in writ-
ing. They are also given to obtain a release from
captivity, with permission to return home. Such pa-
roles are accompanied by a pledge to refrain from tak-
ing part in an existing war until regularly exchanged.
They are given, in writing, usually in duplicate, one
copy being retained by the captor, the other by the
WAR. 237
officer giving the parole. These instruments are ob-
ligatory upon the government of the state to which the
individual belongs only when accepted, or recognized,
by its authority. That government may refuse to
permit its officers to give their paroles, when held as
prisoners of war, and may refuse to recognize them
when given. In such an event, however, it is the duty
of the paroled officer to return at once to captivity.
As legal instruments paroles lose their binding force
1. Upon the formal exchange of the paroled officer ;
2. At the termination of the war.
A l>r,each of parole is an offence against the laws of
war. Its enormity consists in the breach of good faith
that is involved in the commission of the offence. The
punishment inflicted is in proportion to the importance
of the parole given. The extreme penalty is death,
which may be inflicted upon a paroled prisoner who
is captured in arms before he has been regularly ex-
changed.
32. Intercourse between Belligerents. Although the
rule of non-intercourse between belligerent states pre-
vails with great strictness during the existence of war
between them, it would be impossible even for hostil-
ities to be carried on, if all intercourse, irrespective of
its character and purpose, were to be absolutely pro-
hibited. International Law recognizes this necessity,
and deduces , from ; the usages of nations in war the
rules governing such intercourse, the conditions upon
which it is based, and the formalities with which it
shall begin and end. Such intercourse, to be lawful,
must have some direct connection with the existing
state of war, or must be carried on with a view to the
re-establishment of friendly relations.
238 OUTLINES OF INTEKNATIONAL LAW.
Flags of Truce. Communication between belliger*
ents in the field is established by means of flags of
truce. They are sent toward the enemy's lines habit-
ually during an interval of active operations. In case
of extreme urgency they may be sent during an en-
gagement. Though each party has a right to send
them, there is no corresponding obligation on the part
of the enemy to receive them, though it is usual to do
so save in very exceptional cases. After due notifica-
tion has been given they may be warned away ; and,
after a reasonable time has been given to allow them,
to withdraw, they may be fired upon. An officer com-
ing under a flag of truce has no right to enter the ene-
my's lines, nor can he demand that he be conducted
into the presence of the commanding general. As a
matter of strict right he cannot expect to pass the
outposts of the hostile army. His message, if writ-
ten, may there be transferred to the officer receiving
him, or, if verbal, the belligerent may demand that it
be reduced to writing, or that it be delivered orally
to such person as the commanding general may desig-
nate to receive it. If permitted to pass the outposts
he may be blindfolded, or resort may be had to such
other means as will prevent him from obtaining infor-
mation. While the officer accompanying a flag may
see whatever the enemy permits him to see, while in
that enemy's lines under a flag of truce, and the bearer
of a lonafide message, the rules of war justly forbid
the sending of flags of truce with a view of obtain-
ing information, either directly or indirectly. The
present rule of war regards the use of flags for the
purpose of obtaining information as illegal and dishon-
orable, subjecting the bearer to punishment as a spy.
WAR. 239
33. Cartels and Capitulations. A cartel is an agree-
ment entered into between the commanding generals
of opposing armies, or fleets, for the purpose of effect-
ing an exchange of prisoners. Capitulations are com-
pacts entered into, between the same parties, to regu-
late the details of surrender of a fortified place, a
vessel of war, or a defeated army in the field. They
are drawn up in the same manner as treaties, though
not with the same formalities, and are interpreted in
accordance with the same rules. The general com-
manding an army in the field is presumed to have
authority to make them, and to give effect to their
provisions. If he lacks such authority, or if his powers
in this respect be limited, it is his duty to so notify
his enemy.
34. Safe-conducts and Safeguards.-^- A safe-conduct
is a pass given to an enemy subject by the general
commanding an army in the field. It authorizes the
bearer to pass from one specified point to another, by
a specified route, and within certain stated limits of
time. If the authority granted be exceeded, the holder
is liable to be regarded as a prisoner of war. If undue
advantage be taken of a safe-conduct, to obtain infor-
mation, the offender violates the laws of war, and may
be punished accordingly. A safeguard is a written
protection to persons, or property, or both, such per-
sons being resident, or property situate, within the
lines of the general issuing it. It is given upon the
authority, and by, or in the name of, the general-in-
chief, and is binding upon all persons under his com-
mand. " Sometimes they are delivered to the parties
whose persons or property are to be protected; at
others they are posted upon the property itself, as
24:0 OUTLINES OF INTEENATIONAL LAW.
upon a church, museum, library, public office, or pri
vate dwelling. They are particularly useful in the as-
sault of a place, or after its capture, or after the ter-
mination of a battle, to protect the persons or prop-
erty of friends from destruction by an excited sol-
diery." l
Violations of either safe-conducts or safeguards are
punished with the greatest severity.
It is seen that safe - conducts and safeguards are
binding upon the troops commanded by the general
who issues or signs them. Whoever violates them,
therefore, not only violates the laws of war, but is also
guilty of the most serious of all military offences dis-
obedience of orders. For this reason escorts are usu-
ally furnished to enforce respect to these instruments,
and severe penalties are imposed upon those who vio-
late them. " Such escorts or guards are justified in
resorting to the severest measures to punish any vio-
lation of their trust." a
35. Licenses to Trade. Licenses to trade are writ-
ten instruments authorizing their holders to engage in
certain trade with the enemy. The rules in accordance
with which the trade is to be conducted, the articles
to be bought, sold, or exchanged, the amount of trade
authorized, the vehicles, whether ships or wagons, etc.,
in which it is to be carried on, are all specifically laid
down in the permit. A breach of any of its conditions
involves the forfeiture of the goods, conveyances, and
other implements engaged, as it constitutes an offence
similar to breach of blockade.
Licenses are issued by a belligerent government, or
1 Halleck, vol. ii., pp. 353, 354 Ibid.
WAR. 241
by a general in the field, with the sanction of his gov-
ernment. Trade carried on under them becomes legal,
and is so regarded by courts of the state by whom the
license is granted.
36. Crimes and Offences against the Laws of War.
Certain acts done during a state of war are regarded
by all nations as violations of the laws of war. They
are crimes at International Law, and may be punished
by the belligerent who suffers by their commission.
Such an infliction of punishment by one belligerent
furnishes the other with no ground of retaliation or
complaint. All crimes against the laws of war lose
their criminal character at the close of the war, and
are then no longer punishable. They are crimes ac-
cording to a code of law which ceases to exist when
peace is declared; therefore all prisoners held by a
belligerent, for violation of the laws of war, are en-
titled to be set at liberty at the date when the treaty
of peace goes into effect.
Spies. A spy is a person who enters the lines of an
army in disguise, or under false pretences, for the pur-
pose of securing information. An individual who, in
the proper uniform of his army, penetrates within an
enemy's Iine3, is not a spy, for it is the duty of the
enemy to maintain his line of outposts at such strength
and efficiency, in point of numbers, as will make it im-
possible for individuals to pass them. Concealment
or disguise, and the employment of false pretences, are
essential elements to the crime, of being a spy. Those
who undertake to gain information of the enemy's
movements by means of balloons cannot be regarded
as spies, for none of the essential conditions of the
offence attend such operations. Spies are employed
16
242 OUTLINES OF INTERNATIONAL LAW.
at rates of pay commensurate to the risks they under-
take, and are presumed to be aware of the penalty
incurred in the event of their being captured by the
enemy. Service as a spy is voluntary, and cannot be
compelled. A state cannot require an individual in
its military service to act as a spy. If it permits or
authorizes a person in its military or naval service to
act in that capacity, the fact of his being in such ser-
vice will not screen him from punishment, should he
be apprehended by the enemy ; nor will retaliation be
justifiable on the part of the belhgerent who so em-
ploys persons in his military service.
For being a spy the punishment is death. An indi-
vidual charged with the crime cannot demand a trial ;
it is granted, if at all, by the municipal law of the
captor's state.
Guerillas. These are persons who lurk in the vicin-
ity of an army, and commit acts of hostility without
the authorization of their government, or who carry
on their operations in violation of the laws of war.
Small bands or organized parties, commissioned by their
government and forming a part of its regular forces,
are called partisans. Their operations, however an-
noying to an enemy, are perfectly lawful so long as
they are carried on in accordance with the laws of
war. The evil must be remedied by opposing such
partisan forces by other forces of a similar character.
Guerillas, however, are not partisans, "their acts are
unlawful, and when captured they are not treated as
prisoners of war, but as criminals, subject to the pun-
ishment due to their crimes. . . . The perpetrators of
such acts, under such circumstances, are not enemies,
legitimately in arms, who can plead the laws of war
WAR. 243
in their justification, they are robbers and murderers,
and, as such, may be punished." '
Pillaging consists in the forcible taking of property
in an enemy's country, without authority, and in diso-
bedience of orders. It has been seen that the laws of
war prescribe a method in strict accordance with which
certain kinds of property may be taken in war. If it
be taken in any other way such taking constitutes pil-
lage, and is punishable accordingly. There can be no
higher test of discipline in a command than is shown
by the manner in which the private property of an
enemy is treated within its sphere of operations. If
such property is respected, if acts of pillage are strictly
repressed and severely punished, the discipline is good.
If property and life are unsafe in its vicinity, if irreg-
ular seizures are permitted, if orchards and fields are
devastated, discipline worthy of the name cannot be
said to exist.
The punishment of pillage varies with the nature of
the offence. The extreme penalty is death.
Crimes of Violence. Certain crimes of violence,
such as murder, robbery, mayhem, rape, burglary, as-
sault and battery, and assaults with intent to commit
crime, when committed by, or against, residents or in-
dividuals of the invading army, are punishable by mil-
itary commissions, or other tribunals of like jurisdic-
tion. The punishment inflicted is usually more severe
than that awarded by the law of the place where the
offence is committed. This course is made necessary
1 Halleck, vol. ii., p. 7. General Halleck includes guerillas and
partisans under the same designation. In this matter it is rather
the service in which these persons are engaged, than their name, by
which their status is regulated.
244 OUTLINES OF INTERNATIONAL LAW.
by the fact tlmt, in the immediate theatre of war, all
civil authority is suspended, the local courts being
prevented, by the fact of war, from exercising their
ordinary functions. If such crimes were not punished
by the belligerent they would go unpunished, a most
undesirable event from every point of view. Crimes,
at such a time, are of more frequent occurrence, and
are usually of greater enormity, than during a state of
peace. The ordinary restraints of law are removed
or suspended, and the criminal class soon asserts itself
as it finds that opportunity, temptation, and apparent
immunity go hand in hand. Instances have occurred
in which prisons and jails have been emptied upon the
approach of an invading army. The very presence of
a hostile force upon the soil of a country seems to breed
a special criminal class. This class is recruited by de-
serters from both armies, who, operating singly or in
small bands, commit depredations of all kinds, accom-
panying their criminal acts with the most barbarous
atrocities. It is to the suppression of this kind of
brigandage that every belligerent finds himself obliged
to devote considerable time and attention, and, not
infrequently, a large amount of military force. No
repressive measures are too severe which effect any
reduction in this kind of crime. The criminals them-
selves are outlaws, beyond the protection of all law,
civil or martial, and may be hunted down like wild
beasts.
37. Temporary Occupation. When an invading
force has taken secure possession of a portion of the
enemy's territory, such territory is said to be occupied,
and the invader may exercise there all the rights of
occupation. The former sovereignty has been dis-
WAR. 245
placed by force. The allegiance of the inhabitants to
their former sovereign, although suspended by war,
has not been destroyed. Their allegiance to the in-
vader is constrained and involuntary, and can be re-
tained by him only so long as the occupying force is
maintained at such strength as to compel obedience.
History of the Different Views of Occupation. The
theory of the Roman Law, upon the subject of occupa-
tion, was that territory, or other property, lost by a
state as a result of war, became the property of him
who was sufficiently powerful to occupy and retain
it ; and that, during such transient occupancy, all the
rights and powers of sovereignty were vested in the
invader. The allegiance of the inhabitants to their
former sovereign was legally dissolved, and was, by
the fact of hostile occupation, transferred to the new
sovereign. This view was maintained, in practice,
until after the middle of the eighteenth century.
Toward the close of the last century, and as a conse-
quence of the frequent cases of occupation during the
wars that followed the French Revolution, a different
view began to prevail. The doctrine of a complete
transfer of allegiance and sovereignty was generally
abandoned, and was replaced by a theory of tempora-
ry substitution of sovereignty, involving a temporary
transfer of allegiance on the part of the inhabitants of
the occupied territory. This view may be stated as
follows : " The power to protect is the foundation of
the duty of allegiance ; when, therefore, a state ceases
to be able to protect a portion of its subjects, it loses
its claim upon their allegiance, and they either directly
pass under a temporary or qualified allegiance to the
conqueror, or, as it is also put, being able, in their
24:6 OUTLINES OF INTERNATIONAL LAW.
state of freedom, to enter into a compact with the in-
vader, they tacitly agree to acknowledge his sovereign-
ty in consideration of the relinquishment by him of
the extreme rights of war which he holds over their
lives and property." 1
Present View of Occupation. The present view of
occupation is that no permanent change ensues in the
national character, or allegiance, of the population of an
occupied territory as a result of the mere fact of occu-
pation. The invader maintains himself in such territory
by force. The relation existing, between the command-
ing general of the occupying force and the population,
is not that of allegiance, but of constrained obedience ;
and it exists only so long as he is able to compel such
obedience by force. The authority exercised by an
invader is something entirely different from that exer-
cised by the legitimate government, and rests upon an
entirely different basis. In most respects it is greater
and more extensive than the latter, and has no founda-
tion in the consent of the governed. The legitimate
government of the occupied territory is temporarily
displaced and overthrown ; the functions of its officers
and agents are suspended, and the territory is ruled by
martial law. If the ordinary laws of the country, or
any of them, are permitted to exist, and if the courts
are permitted to administer them, they do so at the
pleasure of the commanding general. No guarantees,
constitutional or otherwise, are effective against his
will, and his consent to their existence, or execution,
may be withdrawn at any time. The occupation is
1 Hall, pp. 397, 398, citing Kluber, 256; Halleck, vol. ii., chap,
xxxiii., 14; De Martens, 280.
WAR.
military, not civil, and the invader, in carrying on his
government, is controlled by various considerations,
among which, from, the necessities of the case, those
of a military character are likely to prevail.
Rights of Occupation. The movable property of
the displaced government vests in the belligerent in-
vader by right of capture. He may make such use of
the state property and lands as he sees fit, and the in-
come from such property is payable to him during the
period of his occupation. Taxes due, and payable,
are collected by his authority, and are appropriated to
his use. If he increases them, or imposes any other
burdens or exactions upon persons or property, he
does so in virtue of his right to levy contributions
and requisitions.
The purpose of war is to obtain redress for an in-
ternational wrong. To accomplish this purpose the
use of force which is excessive, or which does not
directly contribute to the end in view, is not lawful.
An invader, therefore, is not justified, during his tem-
porary occupancy, in making political or constitutional
changes in the government of the occupied territory.
The courts of the country should be kept open, the
subordinate officers of the administration should be
continued in their functions ; supported and sustained,
if need be, by the military force of the invader. The
responsibility of maintaining public order, and of pun-
ishing crime, falls directly upon the commanding gen-
eral of the occupying force. In the performance of
this duty he may make use of the local criminal courts,
wholly or in part ; or he may resort to martial law.
Martial Law. Martial law, or, to speak more cor-
rectly, martial rule, or the state of siege, is a term
248 OUTLINES OF INTERNATIONAL LAW.
applied to the government of an occupied territory
by the commanding general of the invading force.
Martial law also prevails in the immediate theatre of
operations of an army in the field. The reason in both
cases is the same. The ordinary agencies of govern-
ment, including the machinery provided for the pre-
vention and punishment of crime, are suspended by
the fact of war. This suspension takes place at a time
when society is violently disturbed, when the usual re-
straints of law are at a minimum of efficiency, and when
the need of such restraints is the greatest possible. This
state of affairs is the direct result of the invasion, or
occupation, of the disturbed territory by an enemy.
The only organized power capable of restoring and
maintaining order is that of the invading force, which
is vested in its commanding general. Upon him,
therefore, International Law places the responsibility
of preserving order, punishing crime, and protecting
life and property within the limits of his command.
His power in the premises is equal to his responsibil-
ity. In cases of extreme urgency, such as arise after
a great battle, or the capture of a besieged place or a
defended town, he may suspend all law, and may pun-
ish crimes summarily, or by tribunals of his own con-
stitution.
If his occupation be temporary, amounting to a mere
passage through a portion of the enemy's territory, he
may decline to interfere in local affairs, further than
to make such transient dispositions as will protect non*
combatants and their property along his line of march.
If he occupies a district for a considerable period of
time his responsibility becomes more general, and the
performance of his duty more intricate and difficult.
WAE. 249
To deduce a rule that shall control a general command-
ing in an enemy's country, his position and duty must
be clearly understood. He appears in the occupied
territory as an agent of his government, charged with
conduct of certain military operations. His first re-
sponsibility is to his own government, for the success-
ful conduct of the military operations with the direc-
tion of which he is charged. In carrying on those op-
erations his government and himself are bound by the
laws of war. The usages of war authorize him to
employ certain forcible measures toward his enemy.
They forbid indiscriminate violence, the use of exces-
sive force, or the use of any force which does not con-
tribute directly to the end for which the war is under-
taken. His exercise of authority in the occupied ter-
ritory must, therefore, be the least possible, consistent
with these ends. He may suspend the constitution and
municipal laws, but he cannot change them, because
such changes in no way contribute to the prosecution
of the war. He can impose no unusual or unauthor-
ized burdens upon persons and property, because the
laws of war require him to protect them.
If the territory is to be occupied for a considerable
time, but without the intention, on the part of the in-
vader, of permanently incorporating it in his own do-
minions, it is usual to permit the local laws to prevail,
and to sanction their enforcement by the existing
courts and other legal agencies. Crimes of special
atrocity, offences against the laws of war, and crimes
over which neither the local nor military courts have
jurisdiction, are tried and punished by military com-
missions, or other special tribunals, constituted for the
purpose by the commanding general. The existence
250 OUTLINES OF INTERNATIONAL LAW.
of these tribunals is recognized by the laws of war as
a necessity of martial rule.
Difference of Opinion as to the Meaning of the Term
Occupation. The precise meaning of the term occupa-
tion has given rise to much difference of opinion. A
definition was attempted at the Brussels Conference,
in 1874. In accordance with this definition, " A ter-
ritory is considered as occupied when it is actually
placed under the authority of the hostile army. The
occupation only extends to those territories where this
authority is established and can be exercised." 1
Opposing Views. Two views have been advanced
as to what constitutes military occupation. One, main-
tained by England and the smaller European states,
regards a portion of territory as occupied only when
it is held by a force sufficient to maintain, at all points,
the authority of the invader, and to suppress uprisings
against such authority. The Swiss delegate to the
Brussels Conference properly compared this view of
military occupation to a valid blockade ; both, to be
binding, must be maintained in sufficient force to be
effective. The other, and opposite view, is supported
by some of the more powerful Continental states ; they
regard occupation as complete when actual armed re-
sistance has ceased, and the authority of the legitimate
government has been displaced or overthrown. Obe-
dience then becomes the duty of the population, inde-
pendently of the force by which such authority is main-
tained. Kisings against the authority of an invader
are by them viewed as illegal- subjecting persons, dis-
1 "Article 1, Project of an International Declaration Concerning
the Laws and Customs 'of War," Brussels, 1874.
WAR. 251
tricts, and towns who favor them, or who take part in
them, to severe punishments.
The operation of this rule would work to the advan-
tage of states which maintain large standing armies,
and would greatly facilitate aggressive warfare. They
would operate with greatest force against states which
maintain small permanent establishments, whose poli-
cy is rather defensive than offensive, and who would
be obliged to rely, in time of war, upon the united re-
sistance of their entire combatant population.
Of the two views which have been described, there
can be no question that the former is more nearly in
accordance with the present rule of International Law.
Occupation is an act of force, the martial rule of the
invader is maintained by force, the obedience of the
population is compelled by force, and obedience exists
only so long as the constraint continues. The right
of revolution is now recognized to exist, even against
the regular government of a state, which rests upon
the presumed consent of the governed. Still more
does the right of armed resistance exist against an au-
thority, which not only has no basis in the consent of
the governed, but which is enforced and maintained,
against such consent, by superior military force.
Permanent Occupation. The rules which have been
discussed refer to cases of temporary occupation. "When
a conquest is to be made permanent, as when a prov-
ince is recovered by the state to which it originally
belonged, a belligerent is justified in making such per-
manent political changes as he may deem expedient or
necessary.
38. Retaliation. The laws of war are equally ob-
ligatory upon the belligerent states and their allies,
252 OUTLINES OF INTERNATIONAL LAW.
and upon the generals who control and direct their
military operations in the field. The duty of observ-
ing these laws is reciprocal, and bears equally upon
both belligerents. If either of them violates a rule of
war, or fails to conduct his operations in strict accord-
ance with them, he cannot complain of similar conduct
on the part of his enemy. On the contrary, he must
expect it. The power of compelling an enemy to ob-
serve the rules of war, or to refrain from violating any
particular one of them, is called the right of retaliation.
A general who suifers a wrong at the hands of an ene-
my, or who finds that his enemy has violated any of
the accepted usages of war, addresses him a communi-
cation setting forth the facts which constitute his
ground of complaint. If no explanation or apology
is attempted, or if the enemy assumes the responsibil-
ity of the act, he is justified in resorting to measures
of retaliation. In choosing a means of retaliation, re-
venge cannot enter into the consideration or decision
of the question. His sole purpose must be to constrain
his adversary to discontinue the irregular acts com-
plained of. Unless the enemy's act be in gross viola-
tion of the dictates of humanity, he must retaliate by
resorting to similar acts in his military operations.
States which find themselves compelled to resort to
retorsion, as a means of obtaining justice, are permitted
to make use of equivalent wrongs. Generals who are
obliged to have recourse to retaliatory measures, how-
ever, must confine themselves to the same or simi-
lar acts. This because of the difficulty of balancing
wrongs, and because the enemy, not appreciating the
justice of the remedy adopted, may feel himself justi-
fied in still further departing from the accepted usages,
WAR. 253
and may ultimately decline to be bound by any of the
rules of civilized warfare.
THE TERMINATION OF WAE.
39. Truce and Peace. A truce, or suspension of arms.,
is a discontinuance of hostile operations over the whole,
or a part, of the theatre of military operations. They
are classified according to their purpose and duration,
and according to the authority of the officers who may
make them, into special and general truces. A special
truce may be entered into by officers, of any grade,
who command armies or separate detachments. They
are always of a temporary character, and are made for
the purpose of arranging the details of surrender of a
defeated army, or besieged place ; for burying the dead,
or removing the wounded, after a battle or assault ; or
for conveying a message to the enemy, and receiving
Ms reply, in some matter of necessary intercourse.
These truces may be verbal or written. In general
the agreement consists in the letter of one general pro-
posing a truce for a certain purpose, and in the reply
of his adversary accepting the proposed arrangement.
The duration of the truce, in point of time, is precisely
stated in the agreement ; and the truce expires, without
notice, at the hour fixed for its termination. Special
truces are binding upon all persons under the command
of the officers who make them.
What may be Done during a Special Truce. Dur-
ing a truce the contracting parties are bound to refrain
from all acts of hostility, and to desist from all military
operations of a hostile character, and from all prepara-
tory movements, or manoeuvres, which could not have
been performed during the continuance of hostilities,
254 OUTLINES OF INTERNATIONAL LAW.
or which would have been performed under the fire
of the enemy. This rule of conduct is deduced from
the definition of a truce a suspension of hostilities.
The end of a truce should find both belligerents in
precisely the same situation in which they were when
it began. "Whatever could have been done without
regard to the enemy, during hostilities, may continue
to be done during a truce. The movement of trains
over a line of supply, the process of collecting forage
and provisions, by requisition, in districts within the
secure control of either party, may continue during a
truce. It has also been contended that a closely in-
vested place may stipulate for the privilege of receiv-
ing an amount of supplies equivalent to that consumed
during the truce. In strict justice, perhaps, this claim
should be admitted. The fall of such a place, however,
is usually only a question of time ; the besieger occu-
pies a position of decided advantage, and the parties
enter the truce upon very unequal terms. The besieger,
therefore, may properly decline to yield the advantage
which he has fairly earned, by permitting provisions
to be introduced into the besieged place. To avoid
difficulty and misunderstanding, it is always desirable
to specify, in the agreement, what particular acts may
or may nob be done during its continuance.
A General Truce or Armistice is an entire suspen-
sion of arms over the whole theatre of military opera-
tions. They are made by the belligerent governments,
or, with their authority, by the generals commanding
in the field, and include within their scope all operations
and forces of whatever character. They are usually
entered into when the issue of the war has been settled
decisively in favor of one of the belligerents, and with
WAR. 255
a view to negotiations for peace. These agreements
are made with greater formality than is the case with
special truces, and describe, in considerable detail, what
may and may not be done during the existence of the
armistice. They are binding upon all forces, both mil-
itary and naval, engaged in the war on either side.
They go into effect from the date of signature, and be-
come binding upon individuals from the date of notifi-
cation. In naval operations some time is necessary
for such notification to reach vessels of war on distant
stations, and special arrangements are made in such
cases to regulate the disposition of captures made be-
tween the dates of negotiation and ratification.
In the preparation of general truces, or armistices,
the possible resumption of hostilities is provided for
by a clause terminating the truce at a certain date, or
upon the expiration of a certain notice. On the date
thus agreed upon the truce ceases to have obligatory
force, and hostilities are resumed by both belligerents.
TREATIES OF PEACE.
40. Treaties of Peace resemble ordinary treaties in
form, in the detailed method of preparation, and in bind-
ing force. They differ from ordinary treaties, and from
private contracts, in respect to the position of the con-
tracting parties, who, from the necessities of the case,
do not enter them upon equal terms. This in no re-
spect detracts from their obligatory character, which
cannot be too strongly insisted upon. "Agreements
entered into by an individual while under duress are
void, because it is for the welfare of society that they
should be so. If they were binding, the timid would
be constantly forced by threats or by violence into a
256 OUTLINES OF INTERNATIONAL LAW.
surrender of their rights, and even into secrecy, as to
the oppression under which they were suffering. The
[knowledge] that such engagements are void makes
the attempt to extort them one of the rarest of human
crimes. On the other hand, the welfare of society re-
quires that the engagements entered into by a nation
under duress should be binding ; for, if they were not
so, wars would terminate only by the utter subjugation
and ruin of the weaker party." 1
"When either belligerent believes the object of the
war to have been attained, or is convinced that it is
impossible of attainment ; or when the military opera-
tions of either power have been so successful as to de-
termine the fortune of war decisively in its favor, a
general truce is agreed upon, and negotiations are en-
tered into with a view to the restoration of peace.
There is no rule of positive obligation as to the man-
ner in which such negotiations shall be established.
The initiative may be taken by either belligerent,
either directly with the hostile state, or indirectly
through a neutral power. A neutral state may tender
its good offices to either belligerent, at any time during
the continuance of hostilities. The purpose of the pre-
liminary negotiations is to arrange for a meeting of
duly accredited representatives charged with the prep-
aration of a treaty of peace. In choosing a place of
meeting a point may be selected within the territory
of either belligerent, or in that of a neutral state. If
need be, a preliminary agreement is made, guarantee-
1 Senior, in vol. Ixxvii. of the Edinburgh He-view, p. 807; cited by
Creasy, pp. 41, 42. See also Halleck, vol. i., pp. 260-266; Phillimore,
vol. i., pp. 151-154; Bluntschli, p. 393; Heffter, 179. For an op-
posite view, see Mommsen, "History of Rome," vol. i., p. 403.
WAR. 257
ing the neutrality of the place of meeting, and the per-
sonal immunity of the ambassadors.
The representatives of the belligerent states meet at
the time and place agreed upon, and, after an exchange
of full powers, enter upon the task of preparing the
treaty of peace. "When substantial agreement has been
reached as to the general terms of peace, a preliminary
draft or treaty is sometimes prepared, containing these
provisions, and describing the questions that are to be
deferred for final settlement in the permanent treaty.
The preliminary treaty is signed and duly ratified by
the contracting parties. If the war has been carried
on by allies on either side, no one of them is justified,
by any reason less strong than self-preservation, in
making peace without the consent of the others, or in
entering into a treaty prejudicial to the common inter-
est of the allied powers.
Treaties of Peace, when Binding. Treaties of peace
become binding upon the signatory powers from the
date of signature. They bind individuals from the date
of notice. If the war has been carried on in distant
dependencies, or on the sea, it is usual to stipulate in
the treaty for the restoration of captures made be-
tween the dates of signature and notification.
Effects of Treaties of Peace. The cause for which
the war was undertaken is presumed to have been set-
tled by the resort to arms, and by the amnesty con-
tained in the treaty. This is the case whether the
state which was the aggressor in the war has been suc-
cessful, or not, in its resort to force to obtain redress.
The subjects of the belligerent states, who were placed
in a condition of non-intercourse, and of legal hostility,
as a result of the declaration of war, are restored to
17
258 OUTLINES OF INTERNATIONAL LAW.
their normal relations. Obligations which were sus-
pended, by the fact of war, resume their force with the
establishment of peace. The payment of public and
private debts, and of interest upon public stocks, is re-
sumed.
Treatment of Occupied Territory. Questions con-
nected with territory, occupied by either belligerent at
the close of the war, are finally settled by the terms of
the treaty. In doing this some status is assumed, and
this may be that existing before the w r ar, or at its
close ; or an intermediate status may be chosen that
existed at some instant during the continuance of hos-
tilities. The details of evacuation of occupied territory,
fortresses, and ports are arranged with great precision.
If the treaty contains no stipulations as to occupied
territory, the rule of uti possidetis prevails, and each
belligerent retains the territory occupied by him at
the close of the war.
The rule as to the real property of the enemy is sub-
stantially the same as that applied to territory. Im-
movable property, belonging to either belligerent,
shares the fate of the territory in which it is situated,
unless otherwise stipulated in the treaty. Forts, arse-
nals, dock-yards, and naval ports, the surrender or evac-
uation of which is arranged for in the treaty, are trans-
ferred in the condition in which they were at the date of
the treaty. They cannot be dismantled, disarmed, or
destroyed, but no obligation exists to repair them after
that date, even when such repairs are necessary. Mov-
able property of the enemy in the hands of a belliger-
ent, at the date of the treaty, becomes his by the fact
of possession. Contributions levied, but not collected,
become void when the treaty goes into effect ; and no
WAR. 259
new contributions or requisitions can be levied by
either party, without the express authorization of the
treaty. The right to levy them is an incident of bel-
ligerency, and ceases at the termination of hostilities.
If a portion of territory be ceded by either party, no
guarantee of the allegiance of the population of the
ceded district is given or expected. The fact that
allegiance is based upon consent is now so generally
recognized in such transfers, as to permit individuals to
dispose of their property and to withdraw to their native
state, when the territory within which they reside has
been ceded to an enemy as a result of war or conquest.
THE RULES OF MAKITIME CAPTURE.
41. The rules of war regarding the treatment of
private property on land have been characterized by a
marked and constant improvement since the beginning
of modern history. To appreciate this change it is only
necessary to compare the laws of war on land, as they
are now understood, with the barbarous practices that
prevailed during the Thirty Years' War, or even with
the corresponding usages during the ISTapoleonic wars
at the beginning of this century. The tendency has
been to give to war on land the character of an armed
contest between belligerent governments, restricting its
operations and effects to the armed forces engaged on
either side, and exempting private persons and private
property from its hardships wherever such exemption
has been possible. There has been no such general
improvement in the laws having to do with the treat-
ment of private property at sea, and the rules regulat-
ing maritime capture have advanced but little since
they were codified, more than eight hundred years.
260 OUTLINES OF INTERNATIONAL LAW.
ago, in the Consolato del Mare. As different states
have, at different times, obtained undue preponderance
at sea, their invariable tendency has been to shape the
rules of maritime capture, rather in accordance with
their views of temporary policy and self-interest, than
in accordance with the demands of humanity and civ-
ilization. As a motive in making and authorizing such
captures, the selfish desire for booty has been only too
apparent ; easily predominating over all of the more or
less plausible reasons that have been alleged in favor
of the practice. From time to time proposals have
been made to exempt from capture at sea all private
property not contraband of war. These propositions
have never been favorably received, however, and there
is no present prospect of the general discontinuance of
a practice, as unjust in principle as it is inefficient, as
a means of redressing an international wrong.
Forces that may be Employed in Maritime War.
The force that may be employed in naval operations
has already been described ; it may consist of the reg-
ular naval establishment of the state, supplemented by
such volunteer forces as may be deemed necessary. It
may also consist of privateers. In time of war no
small part of the duty of the naval force of a bellig-
erent power consists in the exercise of the right of
search, in the maintenance of blockades, and in effect-
ing the capture of enemy's ships and goods upon the
high seas. No such captures are legal, or can be made,
except with the direct authorization of the captor's
state. The making of captures without such author-
ization constitutes the crime of piracy. Captures may
be made upon the high seas, or within the territorial
waters of either belligerent. Captures made in neutral
WAR. 261
waters are illegal, and must be restored, with suitable
apology and reparation, to the neutral government
whose sovereignty has been invaded.
Definition of Prise. The term prize is applied to
all captures of property made at sea. The term ~booty
is applied to similar captures of property on land.
Title to Prize, in Whom Vested. The title to the
prize first vests in the captor's government, and the
further disposal of all such captures is regulated by
its municipal law. The capture is made by its author-
ity, and upon its responsibility. It may therefore
make such disposition of its prize as it may deem best.
It may convert it to its own use, or cause it to be de-
stroyed, or sold ; and it may distribute the whole or a
part of the proceeds of the sale among the captors, in
accordance with the provisions of its municipal law.
There has been some difference of opinion as to the
precise instant when the title to a prize passes from
the original owner and vests in the captor's govern-
ment. Three rules have been applied : 1. The twenty-
four-hour rule, based upon twenty-four hours of secure
possession on the part of the captor. 2. The rule of
pernoctation, according to which the prize must have
been in possession of the captor during the period be-
tween sun and sun. 3. The rule of cessation of resist-
ance, by which the title is held to pass to the captor
when armed resistance ceases, and the flag is struck, or
a voluntary surrender is made. This rule is now the
one most generally accepted.
Duty of Captor. It is the first duty of a captor to
convey his prize into a court of his own country for
adjudication. In former times he was permitted to
take his prize into a neutral port. This is still the rule
262 OUTLINES OF INTERNATIONAL LAW.
of International Law; but the almost invariable prac-
tice of neutrals in recent wars has been to forbid such
a use of their ports, except in cases of distress or emer-
gency. The crews of enemy merchant vessels captured
on the high seas become prisoners of war, and are en-
titled to the rights guaranteed to that class by the
rules of war. The crews of captured neutral vessels
cannot be regarded as prisoners of war. They are sim-
ply detained subject to the action of the prize court
upon the ship, on board of which they are employed.
They are not enemies, and are not subject to detention
or punishment. ]STo measures of severity toward them
are justifiable except in cases of great emergency, and
for such injuries, when shown to be unnecessary, prize
courts may decree damages to the injured parties.
Yessels captured on the high seas are sent into port
under charge of a prize-master, who, with an adequate
prize-crew, is placed on board for that purpose. It is
the duty of the prize-master to secure the ship and
goods in his charge from spoliation or damage during
the homeward passage, and to deliver his prize, imme-
diately upon her arrival, into the legal possession of
the court having jurisdiction over the case. The ship's
papers, log-book, register, sea-letters, and bills of lading
are sealed by the commanding officer of the capturing
vessel, and they, with two or more members of the
ship's company, 1 are conveyed into port by the prize-
master, and are delivered with the prize into the cus-
tody of the court.
The practice of furnishing prize crews tends to de-
plete the fighting strength of the captor, and, if a
1 One of whom should be an officer when practicable.
WAR. 263
number of captures are made, a time must come when
a commander, having a due regard to the safety and
efficiency of his own ship, can no longer make such
detachments from his crew. This emergency is rec-
ognized and provided for by the law of nations, and
by the municipal law of most states, which authorize
him in such an emergency to destroy his prize, or to
accept a ransom. 1 As the present tendency of neutral
states is to close their ports to maritime prizes, such
disposition of prizes is more likely to increase than de-
crease in frequency. The practice of destroying prizes
has been objected to, but rather on the ground of hu-
manity than legality. If the right to capture enemy
property at sea be admitted, the right to destroy it
follows as a natural consequence. The title of the
original owner has been forcibly divested by an act of
war. If any injury has been inflicted upon the bellig-
erent, that injury consists in the fact of capture, which
amounts to a destruction of the property, in so far as
the owner and his government are concerned. It can
matter little to either what disposition is made of
the property, after the owner's title has been extin-
guished.
The Ransom of Captured Vessels. Ransom consists
in an agreement entered into between a captor and
the master of a captured vessel, acting in behalf of the
owners, by which, in consideration of the latter bind-
1 Abdy's Kent, p. 276. " If the prize is a neutral ship, no circum-
stances will justify her destruction before condemnation. The only
proper reparation to the neutral, in such a case, is to pay him the
full value of the property destroyed" (Twiss, "International Law
During War," 167, p. 331; The Felicity, Dodson's "Admiralty
Reports, "vol. ii., p. 386; Boyd's Wheaton, pp. 432, 433).
264 OUTLINES OF INTERNATIONAL LAW.
ing himself to pay a stipulated sum, he is permitted to
continue his voyage, by a specified route, to a certain
port of destination. The instrument containing this
agreement is called a Ransom Contract, and when reg-
ularly made, its binding force is recognized by the law
of nations.
The Ransom Contract is executed in duplicate, one
copy being retained by the captor, and the other by
the master of the captured vessel, to whom it serves
las a safe-conduct during the rest of his voyage. The
precise route to be pursued is stated in the contract,
and if he departs from it he is liable to a second capt-
ure. In this case the ransom contract constitutes a
prior lien upon the prize, and must be satisfied out of
the proceeds of the sale, the remainder only being de-
creed to the second captor. The copy of the ransom
contract which is furnished the enemy master is, in
effect, a guarantee against capture, by another cruiser
of the captor's state, while in prosecution of the voy-
age described in the agreement. He forfeits what-
ever protection the contract gives him if he is found
out of the course therein prescribed, unless driven
from it by stress of weather or other evident necessi-
ty. The contract usually specifies that, if the ship is
wrecked on the high seas, or by the perils of the sea,
the instrument is void. It is otherwise, however, in
case the vessel be stranded, or wrecked intentionally
by the master. " If the captor, after having ransomed
an enemy's vessel, is himself taken by the enemy, to-
gether with the ransom bill of which he is the bear-
er, this ransom bill becomes a part of the capture
made by the enemy; and the persons of the hostile
nation who Avere debtors of the ransom, are there-
WAR. 265
by discharged from their obligation under the ransom
bill." 1 If the Kansom Contract has been conveyed
to the captors state, or to a place of safety, prior to
capture, it retains its obligatory character.
Bansom Contracts constitute one of the exceptions
to the rule of non-intercourse between enemies in war,
and a suit to recover, on such a contract, should not
be barred because the plaintiff is an alien enemy.
The intercourse which is implied by the negotiation
of such an instrument is a recognized necessity of
war, and, for the purpose of enforcing his legal right,
an alien enemy should be recognized as having a legal
standing in the courts of the debtor's state. Indeed,
such is the course pursued by most modern states.
England, alone, constitutes an exception to the rule.
" The English courts have decided that the subject of
an enemy is not permitted to sue in the British courts
of justice, in his own proper person, for the payment
of a ransom, on the technical objection of the want of
a persona stands in judicio, but that the payment
could be forced by an action brought by the im-
prisoned hostage in the courts of his own country for
the recovery of his freedom. This technical objection
is not based upon principle nor supported by reason,
and the decision has not the sanction of general usage." *
Hostages. It was the practice in former times to
give hostages to the captor as additional security for
the payment of ransom. They were conveyed to the
captor's country, and were there detained as prisoners
until the ransom was paid. They were not always
1 Halleck, vol. ii., p. 360.
2 Halleck, vol. ii., p. 361; Boyd's Wheaton, p. 476; case of the
Hoop, Robinson's "Admiralty Reports," vol. i., pp. 169, 201.
266 OUTLINES OF INTERNATIONAL LAW.
treated as prisoners of war, however, but were at times
subjected to special hardships and restrictions, imposed
upon them with a view of constraining the payment
of the ransom contract. If they died in captivity the
ransom contract still remained binding, as they were
only regarded as collateral security for its payment.
Recapture and Postliminy. When a prize has been
made at sea, it has been seen to be the duty of the
captor to send it to a port of his own country, or that
of an ally, for adjudication. In the prosecution of this
voyage it is liable to recapture, and a question arises
as to its ownership in such a case. The prize has been
recaptured by an armed vessel of the same nationality
as the original owner ; but the recapture, in so far as
the recaptor is concerned, was attended by the same
risk and danger that would have been involved in an
original capture of the same vessel from the enemy.
The captor has acquired certain rights in the prize,
and, at the same time, the title of the original owner
to the property has been to a certain extent revested.
The fiction of law which has been invented to adjust
these conflicting claims is borrowed from the Roman
Law, and is called the rule of postliminy. It was ap-
plied by the Romans to all captures of persons or
property made by an enemy in war, and a similar rule
applied to such portions of the public territory as
passed into the hands of an enemy as the result of
conquest. The title to captured property vested in
the captor so long as it remained in his secure posses-
sion. As prisoners taken in war became the slaves of
their captors, their status in Rome, as freemen, was
suspended during captivity. If slaves were captured
the rule of property applied. "When recaptured from
WAR. 267
the enemy the title of the original owner was re-
vived, and the property was restored to him on pay-
ment of salvage. A person who was recaptured be-
came, according to the rule of war, the property of
his recaptor; but the law permitted him to resume
his freedom, or citizenship, upon the payment of a
specified sum.
The modern rule of postliminy resembles in princi-
ple the rule of the Eoman Law, although it is more
just and humane in its application. Persons recapt-
ured in war resume, at once, all their personal and
property rights. Slavery and private ransom are alike
discountenanced by International Law. Property re-
captured from an enemy on land, if possible of identi-
fication, reverts to its owner without cost or payment.
Property recaptured from an enemy, at sea, is restored
to its original owner ; but is charged with the payment
of a reward to the recaptor, to reimburse him for the
risk incurred and the service rendered. The reward
paid to recaptors for the recovery of property captured
at sea is called salvage. The amount of salvage to be
paid, in any particular case of recapture, is determined
by a prize court, in accordance with the municipal law
of the recaptor's state. The amount of salvage award-
ed varies with the difficulty of recapture, and the value
of the prize. It depends also upon the character of
the vessel by which the recapture is made, the award
being greater in the case of a privateer or merchant
vessel than in that of a vessel of war; none being
awarded for the recapture of one public armed vessel
by another. 1 "In general no salvage is due for the
1 For the law of the United States on this subject see 4652, " Re-
268 OUTLINES OF INTERNATIONAL LAW.
recapture of neutral vessels and goods, upon the princi-
ple that the liberation of a bona fide neutral, from the
hands of the enemy to the captor, is no beneficial
service to the neutral, inasmuch as the same enemy
would be compelled, by the tribunals of his own coun-
try, to make restitution of the property thus unjustly
seized." 1
As recapture is possible only between the place of
original capture and the port to which it is sent by
the captor, the right of postliminy exists between the
same limits of time and place. The title of the orig-
inal owner is finally extinguished by the action of the
prize court in decreeing the condemnation and sale of
the captured property ; and the title acquired by the
purchaser is good, even against the original owner or
his government. If such property be recaptured after
it has been regularly condemned and sold, it is not re-
stored to the original owner, but is regarded as lawful
prize, and is treated as such. England furnishes the
only exception to this rule. According to the English
law, property recaptured, during the continuance of a
war, is restored to its owner upon payment of salvage,
no matter how long it has been in the enemy's posses-
sion, nor through how many hands it may have passed
in the way of purchase and sale. A treaty of peace
is alone held to confirm and perfect the title to capt-
ures made during a war.
42. Prize Courts and their Jurisdiction. "Whenever
a capture has been made at sea, it becomes the first
vised Statutes of the United States." For that of France, England,
Spain, Portugal, Denmark, Sweden, Holland, see Boyd's Wheaton,
pp. 442-450; Hall, p. 424.
1 Boyd's Wheaton, p. 435.
WAR. 269
duty of the captor to cause it to be conveyed to a port
of his own country, or that of an ally, for adjudication.
The municipal laws of all states provide special tribu-
nals whose duty it is to determine questions of prize.
These tribunals are called Prise Courts, and as the de-
cision of such questions is an incident of admiralty
jurisdiction, the admiralty courts of most states are
given jurisdiction over cases of maritime capture. This
power may be vested in these courts as a branch of
their general admiralty jurisdiction, or jurisdiction
may be conferred upon them, by special commission
during a particular war. The former practice pre-
vails iu. the United States, the latter now prevails in
England. 1
Prize courts may sit in the ports or territory of a
belligerent, or in those of an ally. The} 7 cannot sit in
neutral ports, even with the consent of the neutral
government, 3 and a belligerent would justly regard the
granting of such permission as a violation of neutral
obligation. This arises from the peculiar jurisdiction
of these tribunals. Prize courts do not try criminal
cases, or determine controversies arising between indi-
viduals. The question before them in any case is,
whether, according to the law of nations, a ship and
cargo were liable to capture, and, if so, whether the
capture was lawfully made. If their decision be in
the affirmative, the ship and cargo are condemned ; if
the decision be in the negative, they are -released. In
its investigation of the circumstances of the capture,
and in reaching a decree of condemnation, the court,
1 3 and 4 Victoria, chap. 65, 22.
2 Boyd's Wheaton, pp. 455, 456; Halleck, vol. ii., pp. 422, 423.
2YO OUTLINES OF INTERNATIONAL LAW.
to a certain extent, acts in behalf of the state under
whose authority it sits, and its decree fixes upon that
government, in the highest degree, the responsibility for
the seizure and condemnation of the enemy's property,
or contraband goods. Its action, therefore, to a much
greater degree than is the case with ordinary judicial
proceedings, constitutes an act of sovereignty, and for
this reason it cannot perform such an act within the
jurisdiction of another sovereign state.
The Law Applied by Prize Courts. In deciding
cases of maritime capture prize courts apply the rules
of international rather than municipal law. For this
reason decisions in similar cases, rendered by the prize
courts of other states, are regarded by them as consti-
tuting precedents of a binding character. "Prize
courts are in no way bound to regard local ordinances
and municipal regulations, unless they are sanctioned
by the law of nations. Indeed, if such ordinances and
regulations are in contravention of the established
rules of international jurisprudence, prize courts must
either violate their duty, or entirely disregard them.
They are not binding on the prize courts, even of the
country by which they are issued. The stipulations
of treaties, however, are obligatory upon the nations
which have entered into them, and prize courts must
observe them in adjudicating between subjects or citi-
zens of the contracting parties." '
Procedure in Prize Cases. The principles of prize,
as at present applied to maritime captures, are almost
identical with the provisions of the Koman Law on
1 Halleck, vol. ii., p. 433; case of the Maria, Robinson's "Admi-
ralty Reports," vol. i., p. 340; Phillimore, vol. iii., pp. 648, 649;
Creasy, pp. 556, 557; Twiss, pp. 335-340; Manning, p. 472.
WAR. 271
the same subject. " The allegations, proofs, and pro-
ceedings are, therefore, in general modelled upon the
Civil Law, with such additions and alterations as the
practice of nations and the rights of belligerents and
neutrals unavoidably impose. . . . Not only the pro-
ceedings, but also the rules of evidence, are, in many re-
spects, different from those of courts of common law ;
and prize courts not only decide upon the claims of
captors, but also upon their conduct in making the
capture, and subsequently, and not infrequently, declare
a forfeiture of their rights with vindictive damages.
" In prize causes the evidence to convict or condemn
must come, in the first instance, from the papers and
crew of the captured ship. It is the duty of the cap-
tors to bring the ship's papers into the registry of the
district court, verify them on oath, and to have the
examinations of the principal officers and seamen of
the captured ship taken on the standing interrogato-
ries, and not viva voce. It is exclusively upon these
papers and examinations that the cause is to be heard
in the first instance. If, from this evidence, the prop-
erty clearly appears to be hostile or neutral, condem-
nation or restitution immediately follows. If the
property appears to be doubtful, or the case suspi-
cious, further proof may be granted according to the
rules which govern the legal discretion of the court,
if the claimant has not forfeited his right to it by a
breach of good faith. . . . Where the national character
does not distinctly appear, or where the question of
proprietary interest is left in doubt, further proof is
usually ordered." '
1 Halleck, vol. ii., pp. 435, 436.
272 OUTLINES OF INTERNATIONAL LAW.
The common-law doctrines, as to the competency of
witnesses, are not applicable to prize proceedings. No
person is incompetent in those courts merely on the
ground of interest. His testimony is admissible, sub-
ject to all exceptions as to its credibility. 1 The rule
that the testimony, for the condemnation of a prize,
must be obtained, in the first instance, directly from
documents or witnesses found on board the vessel at
the time of her seizure, is always adhered to, unless
satisfactory reasons are shown for departing from it
in a particular instance.*
Right of Appeal in Prize Cases. The right of ap-
peal is invariably recognized in the laws creating prize
courts and defining their jurisdiction ; and, on account
of the importance of the interests involved, special
provision is frequently made to enable prize cases to
be carried up, by way of appeal, to a court of last re-
sort, in a much shorter time than is usual, and without
passing through any of the courts intervening between
those of original and final jurisdiction. The laws of
the United States provide for this contingency by per-
mitting an appeal to be taken directly to the Supreme
Court, from the District Courts, which, in the United
States, have original jurisdiction in all cases of mari-
time capture.
Rules for Determining the Nationality of Ships and
Goods. It -has been seen that, in the determination of
a question of prize, the decision will depend upon
whether the property seized has, or has not, the enemy
character. To determine questions thus arising, as to
1 The Anne, Wheaton, vol. iii., p. 435.
2 The Zavalla, Blatchf ord, "Prize Cases, "p. 173; The Jane Camp-
bell, Blatchford, "Prize Cases, "p. 101.
WAR. 273
the nationality of ships and goods, certain rules are
recognized by the prize courts of all nations. The more
important of them are
(a.) The nationality of ships and goods is, in general,
determined by the domicile of their owner. Those
owned by one domiciled in a hostile country are ene-
my goods ; those owned by one having a domicile in
a neutral state are neutral goods.
(b.) The products of hostile soil, and articles manu-
factured in enemy's territory, are hostile, by whomso-
ever owned.
(c.) The share of a neutral partner, in a firm having
a hostile domicile, is hostile.
(d.) If an owner of, or partner in, a business situated
in a neutral state, has himself a hostile domicile, his
share in the neutral house is regarded as enemy prop-
erty.
(e.) A neutral sailing under the enemy flag, or car-
rying his register, or license to trade, is regarded as an
enemy.
(y.) The nationality of goods is determined by their
ownership at the instant of capture ; a change made
in ownership after that date is not recognized.
(g.) " Vessels of discovery, or of expeditions of ex-
ploration and survey, sent for the examination of un-
known seas, islands, and coasts, are, by general consent,
exempt from the contingencies of war, and are there-
fore not liable to capture. Like the sacred vessel which
the Athenians sent with their annual offerings to the
temple of Delos, they are respected by all nations, be-
cause their labors are intended for the benefit of all
mankind. It has been the invariable practice of Eu-
ropean powers to grant safe-conducts to ships sent to
18
274 OUTLINES OF INTERNATIONAL LAW.
explore the Arctic regions, against being captured by
ships of war on their return, in the event of war break-
ing out during such absence." '
(A.) " Fishing-boats have also, as a general rule, been
exempted from the effects of hostilities. As early as
1521, while war was raging between Charles V. and
Francis I., ambassadors from these two sovereigns met
at Calais, then English, and agreed that, whereas the
herring fishery was about to commence, the subjects
of both belligerents engaged in this pursuit should be
safe and unmolested by the other party, and should
have leave to fish as in time of peace. In the war of
1800 the British and French governments issued formal
instructions exempting the fishing-boats of each other's
subjects from seizure." *
References. For the definition and causes of war, see Halleck,
vol. i., chaps, xv. and xvi. ; Heffter, 105-113 ; Kliiber, 231-237 ;
Creasy, pp. 360-394 ; G. F. De Martens, liv. viii., chap, iii., 263-
265 ; Yattel, book iii., chap, i., 1-3 ; Phillimore, vol. iii., pp.
77-84. For the rales and usages of war, see Vattel, book iii.,
chap, ii., 6-23; chap, viii., 136-159; chap, ix., 166-173;
Heffter, 123-129 ; Halleck, chaps, xviii.-xx. ; Hall, chaps, ii. and
vii. ; " La Guerre Actuelle," by C. F. Rolin-Jacquemyn ; JSevue de
Droit International, vol. ii. (1870), pp. 643-720 (series); Rivier,
"Manuel des Lois de la Guerre;" Dr. Lieber "Instructions" (Hal-
leck, vol. ii., pp. 36-51) ; " Rules of the Brussels Conference,"
Boyd's Wheaton, pp. 476-483. For the rules as to the treatment
of property on land, see Vattel, book iii., chap, v., 69-77;
chap, ix., 160-173; Heffter, 127-140; Halleck, chap. xxi. ;
Hall, part iii., chap. iii. ; Bluntschli, " Le Droit de Butin en
G6n6ral et SpScialement du Droit de Prise Maritime ;" Revue de
Droit International, vol. ix., pp. 544-549. For the subject of tem-
porary occupation, see Hall, part iii., chap, iv., 153-161 ; Halleck,
1 Halleck, voL ii., pp. 149-151. 9 Ibid., pp. 151, 152.
WAR. 275
vol. ii., chaps, xxxiii. and xxxiv. ; Heffter, 185 ; Kliiber, 265 ;
Boyd's Wheaton, 346; Creasy, pp. 483-495, and pp. 503-516.
See also "Report of the Brussels Conference," Boyd's Wheaton,
p. 476, " Parliamentary Papers, Miscellaneous," 1875, No. 1 ; De
Martens, 282 b. For the subject of requisitions and contributions,
see Creasy, p. 518-535 ; " Report of the Brussels Conference," " Par-
liamentary Papers, Miscellaneous," 1875, No. 1 ; G. F. De Martens,
280; Halleck, vol. ii., chap, xvi., 15-37 ; Hall, 140-142 ; Vat-
tel, book iii., chap, ix., 160-166. For maritime capture, see Hal-
leck, vol. ii., chap, xxii., 1-24; chap, xxxi; Hall, part iv., chap,
iii., 143-152 ; chap, vi., 167-175 ; Manning, chap. v. ; Heffter,
137-139; Nys, "La Guerre Maritime;" Dahlgren, "Interna-
tional Law;" Wheaton, "History of the Law of Nations;" Blunt-
schli," Le Droit cle Butin en General et Spe"cialenient clu Droit de
Prise Maritime ;" Phillimore, vol. iii., pp. 559-647. For the pro-
cedure of prize courts, see Halleck, vol. ii., chaps, xxxi. and xxxii. ;
Manning, chap. xiii. ; Phillimore, vol. iii., part xi., pp. 648-769 ;
Bulmerincq, " Le Droit de Prises Maritime ;" Revue de Droit In-
ternational, vol. x. and xi. ; Bluntscbli, " Le Droit de Butin en
GSugral et Specialement du Droit de Prise Maritime ;" Revue de
Droit International, vol. ix. aiid x. ; Nys, " La Guerre Maritime,"
chap. vii.
CHAPTEE XL
NEUTRALITY. THE EIGHTS AND DUTIES OF NEUTRALS.
1. The term neutrality is applied to the relation ex-
isting between the states which are parties to a war
and those which refrain from taking part in its opera-
tions, either as belligerents or allies.
A neutral state is one which wholly abstains from
participation in an existing war, rendering no aid or
service to either belligerent in his military operations.
Character of the Neutral Relation. In strictness,
the relations existing between two states, at any time,
must be either those of peace or war. International
Law recognizes no intermediate condition. When a
state occupies the position of a neutral it simply un-
dertakes to maintain, without interruption, its peace-
ful relations with both belligerents. The maintenance
of such relations is, of course, more difficult in war
than in time of profound peace ; and to this end a neu-
tral state finds itself obliged to take such precautions,
within its territorial limits, as will guarantee the con-
tinuance of such friendly relations. For the same pur-
pose it has recourse to such positive measures as will
secure immunity from acts of belligerency within its
territory, and compel respect for its sovereignty and
independence.
2. History of Neutrality. The rules of neutral ob-
ligation are of relatively recent growth, and, in their
present form, are largely the result of a compromise be-
NEUTRALITY. 277
tween the conflicting rights and interests of belligerents
and neutrals. In ancient times the very conception of
neutrality was impossible. So long as one powerful
state aspired to or claimed universal dominion, it was
impossible for other and less powerful states to main-
tain that separate, independent existence which is es-
sential to the recognition of state rights, and so to the
development of a true theory of neutrality. War,
among the ancients, was the normal state of mankind,
in which all nations participated, either as principals
or allies. Had any ancient state attempted to occupy
a position remotely resembling that of neutrality, ac-
cording to the modern acceptation of the term, and
had it attempted to compel respect to its neutral rights,
the belligerent against whom the attempt was made
would have regarded it as an act of war, and would
have governed itself accordingly. This state of affairs
continued until the modern idea of state sovereignty
and territorial independence began to be generally rec-
ognized toward the close of the Middle Ages.
The Origin and Development of the Neutral The-
ory. The theory of neutrality is based upon, and de-
duced from, the conception of a number of sovereign
states, or political communities, each enjoying a sepa-
rate existence, and each recognizing the separate and
independent existence of every other. Such condi-
tions were fulfilled by the Mediterranean cities that
participated in the revival of commerce, toward the
close of the period of the Dark Ages ; and it was among
them that the modern theory of neutrality was devel-
oped. The first conception of neutral right to acquire
general recognition among them seems to have consist-
ed in the idea that, at the outbreak of war between any
278 OUTLINES OF INTERNATIONAL LAW.
two cities, the commerce of the rest, who remained
friendly to the belligerents, as it in no way concerned
the hostile cities, should undergo the least possible in-
terruption. Out of this immunity grew the idea of
the exemption of neutral or friendly goods from capt-
ure in time of war.
These cities were either independent communities, or
were situated in separate states, and commercial rela-
tions had become so firmly established among them
by the close of the eleventh century, as to warrant the
preparation of a code of Sea Laws containing their
common maritime usages. The earliest of these codes,
the Consolato del Mare, recognized the distinction be-
tween the property of friends and enemies in war, and
declared that the .former was exempt from capture and
confiscation, even when found on an enemy's vessel.
If such property were delivered at its destination,
freight was due to the belligerent captor who effected
the delivery. Similar provisions were contained in the
later Sea Laws; indeed, so long as maritime com-
merce was controlled by the cities of southern and
western Europe, the treatment of neutral property at
sea was marked by extreme liberality.
The cities that were identified with the revival of
commerce engaged in such pursuits for purely merce-
nary reasons. They were rivals in commerce only,
and none of them aspired to territorial, as distinguished
from commercial, dominion. Their commercial rivalry
was keen, however, and some of them asserted claims
to the exclusive control of certain waters for purposes
of trade. Conflicts of interest thus arose, which, at
times, resulted in war ; but as their commercial inter-
ests were, on the whole, of the first importance, their
NEUTRALITY.
relations were more generally peaceful than hostile.
Upon the outbreak of war the greater number of cit-
ies found it to be to their interest to refrain from
participation in its operations, and to continue their
friendly relations with both belligerents. The rela-
tions of the non-belligerent, or neutral, cities with each
other underwent no change. They were at peace, and
simply maintained, without interruption, their ordina-
ry commercial intercourse. As the greater number of
these cities were usually at peace, it is easy to see that
it was to the general interest that their commercial
relations should suffer, during war, the least possible
interruption. The necessity of combining to protect
their merchant-vessels from the depredations of pirates
must have suggested to them, at a relatively early date,
the desirability of similar concerted action to secure a
like immunity from acts of belligerency, and to com-
pel respect for their neutral rights.
The Rule of the Consolato del Mare. Out of this
state of international relations grew the rule of the
Consolato del Mare, that enemy goods were liable to
capture, and neutral goods were exempt from capture,
wherever found. This rule was generally accepted
by the commercial cities, and, later, by the European
powers. With occasional interruptions, due, in great
part, to treaty stipulations, it continued to be the most
generally-accepted rule upon the subject of the liability
of property to capture at sea, until the adoption of the
more liberal rule of the Declaration of Paris, in 1856.
General Acceptance of the Rule of the Consolato del
Mare. England adopted the rule at the organization
of its admiralty courts during the reign of Edward
III., and has consistently maintained it during her sub-
280 OUTLINES OF INTERNATIONAL LAW.
sequent history. In a small number of treaties, made
during the seventeenth and eighteenth centuries, the
English government conceded the principle that free
ships make free goods ; but these concessions were of
a temporary character, and in nearly all cases were
terminated by a positive disavowal of the milder rule.
France, after observing the rule of the Consolato for
nearly five hundred years, repudiated it in the Mari-
time Ordinances of 1681. By that instrument the rule
of capture was stated to be, that the goods of an enemy
in a neutral vessel, and the goods of a friend in an en-
emy's vessel, were alike liable to capture ; thus estab-
lishing the rule that enemy ships make enemy goods.
This continued to be the practice of France, subject to
some modification in her conventional law, until the
Declaration of Paris. The practice of Spain, during
the period of her maritime supremacy, was similarly
severe. The policy of the United States, as indicated
in the decisions of the Supreme Court, has been sub-
stantially the same as that of England. " The two
distinct propositions, 1. That enemy's goods, found on
board a neutral ship, may lawfully be seized as prize
of war ; and, 2. That the goods of a neutral, found on
board of an enemy's vessel, are to be restored, have
also been explicitly incorporated into the jurispru-
dence of the United States, and declared by the Su-
preme Court to be founded on the law of nations.
The rule, it was observed by the court, rested on the
simple and intelligible principle that war gave a full
right to capture the goods of an enemy, but gave no
right to capture the goods of a friend. The neutral
flag constituted no protection to enemy's property,
and the belligerent flag communicated no hostile char'
NEUTRALITY. 281
acter to neutral property. The character of the prop-
erty depended upon the fact of ownership, and not
upon the character of the vehicle in which it was
found. Nations, indeed, had changed this simple and
natural principle of public law by conventions between
themselves, in whole or in part, as they believed it to
be for their interest ; but the one proposition, that free
ships should make free goods, did not necessarily im-
ply the converse proposition, that enemy's ships should
make enemy's goods. If a treaty established the one
proposition, and was silent as to the other, the other
stood precisely as if there had been no stipulation, and
upon the ancient rule." ' The policy of the different
departments of the United States government upon the
question of maritime capture has not been the same.
The courts of the United States, being to some extent
controlled by the English precedents in prize cases,
have, in the main, followed the English rule. The po-
litical departments, on the other hand, have constantly
endeavored to secure the greatest possible immunity
from capture for private property at sea, and to that
end have endeavored to obtain, by treaty and other-
wiso, international consent, not only to the rule that
free ships make free goods, but that all private prop-
erty at sea, not contraband of war, should be exempt
from capture and confiscation in time of war."
3. The Principle of Free Ships, Free Goods. The
principle thai free skips make free goods was first rec-
1 The Nereide, Cranch, vol. ix., pp. 388-395, 428, cited by Philli-
more, vol. iii., pp. 317, 318.
8 The principle of free ships, free goods, was incorporated in the
treaties between the United States and France in 1778 and 1800; with
the United Provinces in 1782; with Sweden in 1783, 1816, and 1827;
with Prussia in 1785 and 1828; with Spain in 1795.
282 OUTLINES OF INTERNATIONAL LAW.
ognized by Holland during the early part of the seven-
teenth century, and was the result of the peculiar situ-
ation of that state as a European power. Its military
strength on land was far less in amount than that of
the great states by which it was surrounded, and was
never more than sufficient to the task of securing its
independent political existence. The contrary, how-
ever, was the case at sea, where the maritime power
of the republic was exceeded, if at all, by that of Eng-
land alone. The maintenance of its position as a mar-
itime and commercial power thus became a matter of
the first importance, and was so recognized by the suc-
cession of able statesmen who directed the state pol-
icy of the United Provinces during the seventeenth
and eighteenth centuries. Having but little military
strength, it was desirable that Holland should remain
neutral in all European wars. It was still more desi-
rable, however, that its immense carrying trade should
be exempt from the effects of war at sea. But this
exemption could only be obtained by securing the
adoption of the rule that free ships made free goods,
as the rule then prevailing was that of the Consolato
del Mare, by which the ownership of property deter-
mined its liability to capture. For the adoption of a
new rule on the subject of maritime capture the gen-
eral consent of nations was necessary, and that consent
could only be obtained by treaty stipulations. The
efforts of the Dutch government were therefore direct-
ed to that end, and, as a result, a number of treaties
were negotiated in which the rule of free ships, free
goods, was recognized, and the liability to capture was
determined by the nationality of the vessel, and not by
the ownership of the goods, as in the ancient rules.
NEUTRALITY. 283
As Holland was more generally neutral than bellig-
erent, the adoption of the latter principle, in its fullest
extent, would be, in the main, advantageous to her
interests. She would gain more, as a neutral, by the
adoption of the rule of free skips, free goods, than she
would lose, as a belligerent, by the adoption of the rule
of enemy ships, enemy goods. For this reason, in some
of her treaties both of these principles were connected,
and the liability of merchandise to capture on the high
seas was determined by the nationality of the vessel,
rather than by the ownership of the cargo. 1 The prin-
ciple of free ships, free goods, was accepted by many of
the less important commercial states of Europe. It
was generally adopted by the Baltic powers, by France,
in the Treaty of Ryswick, in 1657, and even by England,
in a few treaties negotiated between the years 1658
and 1756. From the year 1715 onward, the maritime
importance of Holland steadily declined ; and as that
state was no longer directly interested in the mainte-
nance of the new rule, the treaties upon which it had
been based were not renewed, or were suffered to lapse ;
and it appeared less frequently in the new treaties
which were negotiated, from time to time, upon the
subject of maritime capture. From the Peace of Par-
is, in 1763, until the outbreak of the Crimean War, in
1853, the maritime preponderance of England was suf-
ficient to prevent the general adoption of any principle
of capture, more liberal, or less severe, than that con-
tained in the rule of the Consolato del Mare, the justice of
which the British government had always maintained.
At the outbreak of the Crimean War the British
1 For lists of these treaties see Phillimore, vol. iii., pp. 824 etseq.
284 OUTLINES OF INTERNATIONAL LAW.
government announced that, for the period of that
war, it would "waive the right of seizing enemy's
property laden on board a neutral vessel, unless it be
contraband of war." A similar waiver was made by
the French government. In both cases the conces-
sion was declared to be due to a desire to render the
war " as little onerous as possible to the powers with
which they remained at peace." l
4. The Declaration of Paris. The Treaty of Paris,
which terminated the Crimean War, was signed on
March 30, 1856. The representatives of the powers
that had been parties to the treaty, at the sugges-
tion of Count Walewski, the French plenipotentiary,
assembled in conference for the purpose of discussing
the rules of maritime capture, and, on the 16th of
April following, adopted a body of rules modifying
the existing rules of capture, which has since been
known as the Declaration of Paris. The rules adopt-
ed were four in number :
(.) Privateering is, and remains, abolished.
(b.) The neutral flag covers enemy's goods, with the
exception of contraband of war.
(<?.) Neutral goods, with the exception of contraband
of war, are not liable to capture under the enemy's flag.
(d.) Blockades, to be binding, must be effective, that
is to say, maintained by a force sufficient really to
prevent access to the coast of the enemy.
The declaration was signed by plenipotentiaries rep-
resenting Great Britain, France, Russia, Austria, Sar-
dinia, Prussia, and Turkey ; and the signatory powers
1 Joint Declaration of March 28, 1854, made by England and
France.
NEUTRALITY. 285
further agreed to bring the declaration to the knowl-
edge of the states which had not taken part in the
Congress of Paris, and to invite them to accede to it.
Between the years 1856 and 1861 the principles of the
declaration had been accepted by all the European
powers except Spain, and by all those on the western
continent except Mexico and the United States. The
three powers, which refused to adopt the proposed
rules, agreed in rejecting the rule abandoning the prac-
tice of privateering ; and, as the declaration had to be
accepted as an entirety, these states were thus prevent-
ed from formally accepting the three rules to which
they entertained no objection. When the Declara-
tion of Paris was submitted to the government of the
United States for adoption, it was replied, in behalf of
that power, that, in their proposed form, the rules could
not be accepted as a whole. The policy of the United
States had always been to maintain a small naval es-
tablishment, and its important commercial interests
would not permit it to resign the right of increasing
its power at sea, at the outbreak of war, by the accept-
ance into its naval service of a force of privateers. It
was observed, however, that if a rule were added to
the Declaration exempting all private property from
capture at sea, in tune of war, the necessity for the
employment of such an additional force would disap-
pear, and the United States would gladly accede to the
proposed rules. At the outbreak of the War of the
Rebellion an attempt was made by the United States
to become a party to the Declaration of Paris, but, as
it was understood that its acceptance was to include
the Confederate States as well, the attempt was not
persisted in.
286 OUTLINES OF INTERNATIONAL LAW.
Binding Force of the Declaration. The rules of the
Declaration of Paris upon the subject of maritime
capture, although binding upon the signatory powers
alone, have been generally accepted as the rule of In-
ternational Law upon the subjects of which they treat,
and it is highly improbable that a severer rule will be
adopted at any time in the future. The adoption of a
milder rule is as little probable. Upon several occa-
sions it has been suggested to amend them, in the direc-
tion of greater liberality, by the adoption of a rule
exempting all private property from capture at sea.
These suggestions have not been favorably received
by the great maritime powers, however, and there is
no indication, at present, that the rules of the Declara-
tion will be relaxed in such a way as to give to private
property, at sea, any greater immunity from capture
than it now enjoys.
At different times the justice of the rules of the
Declaration of Paris has been discussed, especially in
England, and the opinion has been advanced that that
power had unwisely surrendered a valuable right, with-
out receiving in return any corresponding advantage.
It is difficult to see how this ground can be maintained.
The loss of private property at sea, however great in
amount, rarely affects, to any material extent, the mil-
itary resources of a powerful belligerent, and so, rarely
contributes to bring to an end an existing war. It
would be impossible to invent a more effective method
of not only crippling, but absolutely destroying, the
merchant marine of a state, than was resorted to, with
the most complete success, by the government of the
Confederate States during the War of the Rebellion.
But the destruction wrought by the Confederate cruis-
NEUTRALITY. 287
ers in no material way impaired the military strength
of the United States, or changed the result of the war
in the slightest degree. If it was intended, by the de-
struction of vast amounts of private property, to affect
the course of the Federal government, that intention
signally failed of execution. On the other hand, it
is at least probable that the business revival of the
Southern States has been, to an appreciable degree,
injuriously affected by the change in carrying trade,
which resulted from the destruction of the American
merchant marine during the War of the Rebellion.
The position of England in this matter is still more
difficult to understand. The English navy, efficient
and powerful as it may be, is not omnipotent, and, as
the experience of the United States has shown, the
enormous commercial marine of England would, in
the event of war, be liable to capture and destruction,
as a result of the depredations of a relatively small
number of fast-steaming cruisers, whose operations are
more difficult to check than is generally supposed.
The power of a state to efficiently police the sea, and
to protect its merchant marine, by preventing or pun-
ishing depredations against it, is largely overestimated.
At no time in history has the supremacy of England
at sea been more unquestioned than during the period
of aSTapoleonic wars, at the beginning of this century ;
and yet, on two conspicuous occasions, when the full-
est warning of the enemy's purposes and intentions
had been given, a hostile fleet was able, without par-
ticular or exceptional difficulty, to evade the whole
maritime power of England. 1
1 One of these occurred in 1796, when General Hoche succeeded
288 OUTLINES OF INTERNATIONAL LAW.
5. Effect of Claims to Exclusive Dominion upon the
Development of the Neutral Theory. As the assertion
and enforcement of these claims have invariably had
the effect of retarding the development of the true the-
ory of neutral obligations, they will now be briefly
discussed. If we examine the history of those cities and
states which, at different times, have attained great mar-
itime or commercial supremacy, it will be seen that
they have always claimed exclusive commercial do-
minion over the seas and coasts with which they were
the first to develop commercial intercourse. When
the Greeks first began to interest themselves in foreign
commerce they found the Phoenicians in possession of
the most desirable coasts of the Mediterranean. They
were, therefore, obliged to confine their commercial
undertakings to new seas, or to parts of the Mediter-
ranean which their rivals had not already appropri-
ated. Neither of these people aspired to territorial, as
distinguished from commercial, dominion. The pos-
session of the sea-coast sufficed to secure the latter;
with the former they had no concern. With the Ro-
mans the case was entirely different. They deemed
mere commercial supremacy as of but slight impor-
tance, and claimed, and ultimately acquired, universal
dominion. With the downfall of the Western Empire
commerce greatly declined, and at times almost dis-
appeared. With the revival of civilization, however,
commercial intercourse was re-established, and was
fostered and controlled by those cities of Italy and
in entering Bantry Bay, on the Irish coast; the other in 1798, when
an enormous French fleet succeeded, during a period of more than
six weeks, in evading a no less skilful naval commander than Lord
Nelson. Thiers, vol. iv., pp. 67, 260 et seq.
NEUTRALITY. 289
Spain which were the first to engage in maritime pur-
suits, toward the close of the Dark Ages. These cities
soon claimed exclusive dominion over certain waters
for purposes of trade, and forbade all commerce with
such coasts to the ships of other cities. Their right
to such exclusive intercourse was denied, and numer-
ous wars were undertaken, some in support of, and
others in opposition to, these claims.
Venice was the first of the Mediterranean cities to
attain to any considerable degree of commercial su-
premacy, and, so early as the twelfth century, asserted
a right to the exclusive navigation of the Adriatic.
This claim was sanctioned by Pope Alexander III., in
11 77, 1 and was long maintained against all opposition.
At a later period similar claims were advanced by Ge-
noa and Pisa. The discovery of the sea route to India
by Portugal, and of the western continent by Spain,
largely reduced, and eventually destroyed, the commer-
cial importance of the Mediterranean cities, and trans-
ferred' the sovereignty of the seas to the two latter
powers, by whom, in turn, the most extravagant claims
were asserted to maritime dominion. As the claims
brought forward by Spain and Portugal were in some
degree conflicting, they were submitted to the pope,
Alexander YIL, who, in 1493, established, as a boun-
dary between them, a meridian line passing through a
point one hundred leagues west of the Azores Islands. 2
All of the earth's surface east of that line, which formed
no part of the dominions of any Christian prince, was
declared to belong to Portugal ; while all to the west
of the same line was, subject to a similar restriction,
1 Azuni, vol. i., p. 76. a Ibid., p. 106.
19
290 OUTLINES OF INTERNATIONAL LAW.
decreed to Spain. Claims somewhat similar in charac-
ter were advanced, at a later period, by England and
Holland, only to encounter the most serious and obsti-
nate resistance, which resulted in their final abandon-
ment. The last instance of such a claim being ad-
vanced to any considerable portion of the high seas
was that of Russia, who asserted the right of exclu-
sive navigation of that part of the Pacific lying north
of the fifty-fourth degree of north latitude, on the
ground that it possessed the coasts of both continents
above that line. This claim, however, was relinquished
upon the representations of England and the United
States, and has never been reasserted. 1
If the claims which have been made, at different
times, to exclusive maritime dominion be examined,
it will be found that each of them is susceptible of be-
ing resolved into two parts :
(a.} A claim to a kind of territorial sovereignty over
a portion of the high seas, with the adjacent coasts.
(7>.) A claim to the right of exclusive commercial
intercourse with the territories whose coasts were
washed by the waters over which jurisdiction was
asserted.
The first of these claims has been vigorously opposed
since the middle of the seventeenth century, and with
such success that all such claims have long since been
abandoned, never to be reasserted.
The second continued to exist, and was long recog-
nized as just and equitable. As new territories were
acquired by different European powers, either by colo-
1 See "Treaties and Conventions of the United States with Foreign
Powers," Washington, 1871, pp. 733-735.
NEUTRALITY. 291
nization or by conquest, the exclusive privilege of
trading with them was claimed by the parent or con-
quering state, and, tacitly or expressly, recognized by
other states of the civilized world.
The Jtfo?iopoly of Colonial Trade. Although the
claim of a parent state to a practical monopoly of co-
lonial trade was finally recognized, such recognition
was not conceded without opposition, nor was the co-
lonial monopoly itself a source of unmixed benefit to
the state enjoying it. In time of peace it was a fruitful
source of revenue, and afforded a favorable market for
the productions of the mother country. In the event
of war, however, if the parent state occupied the posi-
tion of a belligerent, its vessels engaged in the colonial
trade became liable to capture and confiscation, and it
was impossible to measure the resulting loss by the
money value of the ships and cargoes which were capt-
ured by the enemy. A large part of the belligerent's
commerce was destroyed, or diverted to other chan-
nels, and was but slowly revived after the peace. To
obviate this attempts were made, at times, by several
European states, to transfer their colonial trade to a
neutral flag, during the period of hostilities. As this
course deprived a belligerent of the right to injure his
enemy, by a resort to one of the most powerful means
of coercion then recognized by the laws of war, such
transfers of trade were stoutly resisted, chiefly by the
British government; whose maritime preponderance
had become so firmly established by the middle of the
eighteenth century as to enable it to enforce respect, in
so far as its own interests were concerned, to whatever
vievrs of maritime warfare were deemed by it to be cor-
rect, and in accordance with International Law.
292 OUTLINES OF INTERNATIONAL LAW.
The Rule of 1756. The view thus advanced by
Great Britain was extended to all colonial trade with
neutrals by the Kule of 1793, but was immediately op-
posed by France and Spain, and, at a later period, by
the United States. A principle or rule, asserted, or
even enforced, by one powerful state, is not a rule of
International Law ; to become such it must receive the
sanction of all, or nearly all, of the civilized states of
the world. The principle underlying the llule of 1756
is now accepted, as applying to coasting trade, by the
principal maritime powers. But the Kule of 1793 has
received no such general sanction, and its enforcement,
if persisted in, would have given rise to most serious
complications. Its severity, however, was relaxed as
practical free trade was gradually conceded to colonies ;
largely upon their demand to enter the markets of the
world upon equal terms with the mother country.
6. Development of the Theory of Neutrality among
the Non-maritime States of Europe. The power and
importance of the Mediterranean cities was entirely
maritime, and was due to the energy and industry with
which they prosecuted their commercial undertakings.
They had but little power on land ; they rarely assert-
ed claims to territorial supremacy, and so were rarely
engaged in wars, other than those caused by their con-
flicting commercial interests. It was for this reason
that they progressed but little, in their development
of the theory of neutrality, beyond the establishment
of the rules regulating the subject of maritime capture.
The relations of the great European states, which were
gradually acquiring something of their present terri-
torial form, were not such as to favor the development
of any consistent or enduring theory of neutral obliga*
NEUTRALITY. 293
tion. Their relations were more generally hostile than
peaceful ; private and dynastic wars were common, and
the brief periods during which hostilities were inter-
rupted, or suspended, were usually devoted to the prep-
aration of new schemes of conquest or dominion. Some
progress must have been made, however, as the neces-
sities of the great powers made peace occasionally de-
sirable. But it was impossible for the conception of
neutrality to obtain general recognition until the de-
sire of the powers to remain at peace had acquired suf-
ficient strength to become at least equal to the desire
for war and conquest. In the absence of positive evi-
dence, it is fair to presume that the rudiments of the
theory were first recognized by those states which be-
came neutral by reason of their distance from the thea-
tre of war, and from a consequent lack of direct interest
in the war, or its results. When the principle of the
balance of power first began to be understood, it seems
to have been regarded as possible to maintain it in no
other way than by waging war against the state, or
states, which threatened it. Indeed, it was not merely
threatened, it was repeatedly attacked, and was in con-
stant danger of overthrow, which could be effectively
prevented only by force of arms. This state of affairs
contributed powerfully to retard the growth of the
theory of neutrality, since every important state in
Europe was obliged to take part, as principal or ally,
in the numerous wars which were undertaken when-
ever the equilibrium was disturbed.
Influence of England upon the Development of the
Modern Theory of Neutrality. The insular situation
of England, so placed as to be secure from attack ex-
cept by sea, enabled, and to some extent constrained,
294: OUTLINES OF INTERNATIONAL LAW.
that power to adopt a policy of partial abstinence from
interference in Continental affairs ; and to decline tak-
ing part in Continental wars in which it had no impor-
tant interests at stake. ISTot only was England able to
decline participation in such wars, thus placing her in
a position of practical neutrality, but her power on
land and sea was so great as to enable her to insist
upon her neutrality being respected by belligerents.
She thus became, to a certain extent, an advocate of
neutrality, and an example to other powers of the ad-
vantage of remaining neutral.
General Acceptance of the Modern Theory in the
Seventeenth Century; its Later History. Although
its progress had been extremely slow, the principle of
neutrality had received such general recognition by the
middle of the seventeenth century, as to lead Grotius
to devote a portion of his work to a discussion of the
rights and duties of neutrals. From that time its prog-
ress was more rapid. The Treaty of Westphalia large-
ly diminished the power and influence of the Pope in
secular affairs, and enabled the intercourse of the Eu-
ropean states to assume a more normal character. Wars
became less frequent, and were more closely restricted,
in their operations and effects, to the states which were
immediately concerned in them. The states which
chose to occupy the position of neutrals, at the out-
break of war, steadily increased in number ; and were
led to insist more strongly upon their rights being re-
spected by belligerents.
It was during this period that the Dutch became in-
terested in the amelioration of the rules of maritime
capture. Their efforts were not permanently success-
ful, however, and, as their influence declined, that of
NEUTRALITY. 295
the United States began to be put forth in advocacy of
the same cause. Their independence had no sooner been
recognized than they began to assume importance as a
commercial power. The tendencies of the new state
were altogether peaceful. Its distance from Europe,
not less than its peculiar governmental institutions, se-
cured it an almost complete immunity from interfer-
ence in European affairs, and enabled its people to devote
their energies to projects of internal development, and
to the extension of their already important commercial
relations. The foreign policy of the United States was,
from the first, one of strict non-participation in ques-
tions of strictly European concern. Every considera-
tion, therefore, of material interest and territorial po-
sition, induced the new republic to occupy an attitude
of neutrality in all wars of European origin. The jus-
tice and advantage of this policy were fully appreciated
by those who directed its foreign affairs, and so thor-
oughly were the principles of neutral obligation un-
derstood by them, that the early proclamations of neu-
trality, issued by the United States, not only served to
establish the permanent neutral policy of that power,
but were soon generally accepted as furnishing an en-
during standard of neutral right and duty.
7. Gradations of Neutrality. The crude and im-
perfect views of neutral duty which formerly prevailed
admitted of gradations, or degrees, of neutral obliga-
tion. These were, in substance, violations of neutral-
ity, and, as such, are no longer sanctioned by the prac-
tice of nations. Such was the qualified neutrality of
certain European states during the last century, by
which the obligation to remain neutral was qualified
by a previous treaty with one of the belligerents, stip-
296 OUTLINES OF INTERNATIONAL LAW.
ulating to furnish him with certain aid in men, money,
or war material in the event of a particular war, or
upon the occurrence of hostilities of any kind with
any state. Such action would not now be tolerated ;
and a state entering into such treaty engagements
would be regarded as an ally of the enemy so soon as
it undertook to carry into effect its treaty stipulations.
Permanent Neutrality. The status of permanent
neutrality occupied by Switzerland and Belgium is in
no way repugnant to International LaAV. The excep-
tional circumstances in each case are, to some extent,
based upon the size and territorial position of these
states, upon their inferior military power as compared
with the great states by which they are surrounded,
and to a certain extent, also, upon considerations hav-
ing to do with the preservation of the European bal-
ance of power.
Armed Neutrality. An armed neutrality is, in fact,
an alliance of several powers, usually of a defensive
character, though this is by no means essential. The
purpose of such an alliance is to secure the mainte-
nance of certain views of neutral right, which are be-
lieved to be in danger, or whose justice is likely to be
questioned. The most striking historical examples of
such alliances are those of the armed neutralities, of the
northern European powers, of 1780 and 1800. These
alliances were made to defend the principle of free
ships, free goods, which had been adopted by treaties
between the Baltic powers, and which was opposed by
England ; that power being, on both occasions, a bel-
ligerent. Although the purpose of the alliance was
not effected on either occasion, the agitation of the
question continued, and without doubt contributed
NEUTRALITY. 297
materially to bring about the adoption of the Declara-
tion of Paris. If the commercial interests of several
nations are threatened by unjust or unlawful measures,
on the part of a belligerent, which they deem unjust
or dangerous, there can be no question of their right
to secure their menaced interests by such combinations
as seem best calculated to accomplish the purpose.
Strict Neutrality. As at present understood, a state,
in becoming neutral, occupies a position of strict neu-
trality. It rigidly abstains from aiding either bellig-
erent, or from rendering to either of them any service,
however slight or immaterial, which is calculated to
assist him in his military operations. The friendly
relations existing at the outbreak of the war are not
interrupted, and it is to secure the continuance of such
relations that a neutral state becomes charged with
certain duties, during war, which do not exist during
peace. These obligations are the measure of a neu-
tral's duty in war. They are determined by Interna-
tional Law, and have the same binding force upon all
states. A failure in the performance of these duties
is an injury to the particular belligerent who suffers
by the failure of a neutral state to fulfil its obligations.
These obligations have to do, in part with the conduct
of the neutral state in its capacity as a body corporate,
and in part with the conduct of persons within its ju-
risdiction.
8. Neutral Duty of a State. A state, in its corpo-
rate capacity, is not permitted to give any material
aid to either belligerent, or to furnish money, ships,
troops, subsistence, or munitions of war ; or to render
any assistance which is likely to be useful to such bel-
ligerent in his military operations. A neutral state,
298 OUTLINES OF INTERNATIONAL LAW.
therefore, cannot permit its ports, or territorial waters,
to be used as a base of hostile operations, or as depots
of supply of articles susceptible of warlike use. It is
forbidden to allow the enlistment of men, or the or-
ganization or equipment, wholly or in part, of a hos-
tile expedition, by sea or land, within its territorial
limits.
Some of these acts being, in substance, acts of sov-
ereignty, are forbidden alike in peace and war. Oth-
ers are permitted in peace, but are forbidden in time
of war. The principle underlying the latter class is
this. Any substantial aid or service, which contributes
to the success of the military operations of one bellig-
erent, enables him to inflict an injury upon his enemy
with whom the neutral is at peace. The neutral state,
therefore, in a more or less direct manner, has injured,
or contributed to injure, a friend. As every state is
the exclusive judge as to what injuries it shall regard
as furnishing just cause for war, a neutral state may
in this way, by a single act of service, become a party
to the war. It is easy to see, therefore, that, if it were
permitted to render such services with impunity, every
important war would, sooner or later, involve all neu-
tral states in its operations, and so one of the chief
purposes of International Law would fail of attain-
ment. War would again become the rule, as in an-
cient times, and for much the same reason. Perma-
nent peace would be impossible, and the relations of
states would be subjected to a constant strain, which
would seriously affect their prosperity and material
development.
Neutral Duties. A state in becoming a neutral can-
not divest itself of the duties to other states, and to
NEUTRALITY. 299
their individual subjects, which are incumbent upon it
in time of peace. These continue in force, but certain
precautions incident to, and made necessary by, the
fact of \var, must be observed in their performance.
Asylum to Troops and Ships. A neutral is obliged
to grant an asylum to individuals of the enemy, who
come into its territorial limits to escape pursuit, or to
find protection from acts of hostility. They become
subject to neutral jurisdiction so soon as they enter its
territory. If fleeing from an enemy, they are dis-
armed, and, at the discretion of the neutral govern-
ment, may be removed to points in the interior, and
may there be subjected to such measures of police su-
pervision, or positive restraint, as it may deem neces-
sary to secure respect for its neutrality. If in large
numbers and without means of support, these fugitives
are made the subject of treaty arrangements, and are
usually supported at the expense of their own govern-
ment. The French troops who fled to Belgium, after
the battle of Sedan, were disarmed and conveyed to a
point at some distance from the frontier, and the ex-
pense of their maintenance was ultimately defrayed
by the French government.
Right of Asylum in the Case of Public and Private
Vessels. A similar right of asylum exists in the case
of public and private armed vessels, and to merchant
ships belonging to either belligerent. They may seek
refuge in a neutral port from the perils of the sea, or
from a superior force of the enemy. The protection
of the neutral government is extended to them so soon
as they come within its territorial waters ; and it may
resist, by force if need be, any hostile attempts that
are directed against them while within its jurisdiction.
300 OUTLINES OF INTERNATIONAL LAW.
As the favor is that of asylum only, the asylum may
terminate at the will of the neutral. "When vessels of
two belligerents are found in a neutral port, at the
same time, it is within the power of the neutral to es-
tablish such regulations, in regard to their conduct and
departure, as will make it impossible for an engagement
to take place in the immediate vicinity of the port.
This object is usually attained by the enforcement of
the twenty -four hour rule, by which, when one belliger-
ent vessel departs, the other is forbidden to sail within
twenty-four hours. This rule has been so frequently
and generally applied, in recent times, as to have re-
ceived the universal sanction of nations.
Neutral Territory. The territory and territorial
waters of a neutral state are sacred from belligerent
intrusion, save with the consent of the neutral govern-
ment. Such consent may be granted, or denied, to
both belligerents ; but, according to the present rule,
cannot be granted to either to the exclusion of the
other. Captures made in neutral waters are restored,
or indemnified, even after they have been condemned
by a prize court, since such courts have no jurisdiction
over prizes made, except on the high seas, or within
the territorial waters of a belligerent. "It belongs,
however, exclusively to the neutral government to
raise objection to a title founded upon a capture made
within neutral territory. So far as the adverse bellig-
erent is concerned, he has no right to complain if the
case be tried before a competent court. 1 The gov-
ernment of the owner of the captured property may,
indeed, call the neutral to account for permitting a
1 The Arrogante Barcelones, Wheaton, vol. vii., p. 490.
NEUTRALITY. 301
fraudulent, unworthy, or unnecessary violation of its
jurisdiction, and such permission may, according to
the circumstances, convert the neutral into a bellig-
erent." '
The right of a public armed vessel of a belligerent
to enter a neutral port, when not in distress, is usually
conceded ; and is presumed, unless notice to the con-
trary is formally given by the neutral government.
They may be forbidden to enter certain ports, or to
enter neutral territory at all except in distress, but the
rule must bear equally upon both belligerents. Pri-
vateers may be denied entrance to neutral ports, es-
pecially if the neutral government is a party to the
Declaration of Paris. The bringing in of prizes is
still authorized by existing treaties, though the present
tendency is to restrict the right within the narrowest
limits, if not to deny it altogether. The condemnation
or sale of such prizes by a neutral prize court, or by a
belligerent prize court sitting in neutral territory, is
no longer permitted.
A belligerent war ship which has been permitted to
enter a neutral port, may procure there such supplies,
not contraband of war, as may be permitted by the
neutral government. The supply of coal is now made
the subject of special regulation, and only a limited
amount is allowed to be taken in. 3
1 Phillimore, vol. iii., p. 287.
On Jan. 31, 1862, the British government adopted the rule that
a belligerent armed vessel was to be permitted to receive, at any
British port, a supply of coal sufficient to enable her to reach a port
of her own country, or a nearer destination. A second supply was
not to be given within three months, save with the express permis-
sion of the government.
302 OUTLINES OF INTERNATIONAL LAW.
9. Responsibility of a Neutral State for the Acts of
its Subjects. A different rule applies to the conduct of
the subjects of a neutral state, than is applied to the
neutral state itself, in its relations with the belliger-
3nts. It has been seen that the restrictions, to which
neutral states are subject, are such as will prevent them
from aiding either belligerent in his military opera-
tions, and, at the same time, be the smallest possible
consistent with the purpose of the war. The subjects
of a neutral state, however, at the outbreak of a war,
are engaged in many different occupations, over some
of which the belligerent is given jurisdiction to the
extent of actual prohibition. They are also engaged
in the production, manufacture, and sale of certain
articles which become contraband of war if sold to an
enemy, or found at sea en route to an enemy's port.
In all other respects their undertakings are innocent,
and are not interrupted, or affected, by the fact of war.
The manufacture of contraband articles, and even their
sale, in neutral jurisdiction, continues to be an inno-
cent and lawful occupation. The neutral state itself
ought not to be expected to interfere with the pursuits
of its subjects, so long as they are not likely to com-
promise the position of neutrality which it assumed at
the outbreak of the war. The power placed in the
hands of the belligerents to blockade the ports of an
enemy, to search neutral vessels on the high seas, and
to seize and condemn such portions of their cargoes
as are contraband of war, or are destined to a block-
aded port, are ample to protect them from being in-
jured by the acts of individuals. If they do not, or
cannot, make their powers effective, they cannot, of
right, expect neutral states to assist them in their en,-
NEUTRALITY. 303
deavors. Nor can they expect neutrals to resort to
severe police measures, against their own subjects, in a
matter with which they have no direct concern.
View of England and the United States. The prin-
ciple involved was well stated by Mr. Webster in his
reply to the Mexican government, which had com'
plained of certain alleged violations of neutrality, on
the part of individuals, in the supply of arms to Texas,
then at war with Mexico. " It is not the practice of
nations to prohibit their own subjects, by previous
laws, from trafficking in articles contraband of war.
Such trade is carried on at the risk of those engaged
in it, under the liabilities and penalties prescribed by
the law of nations or particular treaties. If it be true,
therefore, that citizens of the United States have been
engaged in a commerce by which Texas, an enemy of
Mexico, has been supplied with arms and munitions of
war, the government of the United States, neverthe-
less, was not bound to prevent it ; could not have pre-
vented it, without a manifest departure from the prin-
ciples of neutrality, and is in no way answerable for
the consequences. . . . The eighteenth article (of the
treaty between the United States and Mexico) enumer-
ates those commodities which shall be regarded as con-
traband of war ; but neither that article, nor any other,
imposes on either nation any duty of preventing, by
previous regulation, commerce in such articles. Such
commerce is left to its ordinary fate, according to the
law of nations." *
Mr. Layard, the Solicitor-General of the British gov-
1 Lawrence's Wheaton, p. 813, note, citing Webster's Works, vol
vi., p. 452, "Letter of Webster to Thompson," July 8, 1843.
304 OUTLINES OF INTERNATIONAL LAW.
ernment, in a speech in the House of Commons, adopt
ed the view above stated, and added, " The only law
which enables Her Majesty's government to interfere
in such cases is called the Foreign Enlistment Act, and
the whole nature and scope of that act is sufficiently
and shortly set out in its title. It is ' An act to pre-
vent the enlisting and engagement of Her Majesty's
subjects to serve in a foreign service, and the fitting
out or equipping in Her Majesty's dominions, of ves-
sels for warlike purposes, without Her Majesty's li-
cense.' That act does not touch, in any way whatever,
private vessels which may carry cargoes, contraband,
or not contraband, between this country and any port
in a belligerent country, whether under blockade or
not ; and the government of this country, and the gov-
ernments of our colonial possessions, have no power
whatever to interfere with private vessels under such
circumstances.
" It is perfectly true that in the queen's proclama-
tion there is a general warning at the end, addressed
to all the queen's subjects, that they are not, either in
violation of their duty to the queen, as subjects of a
neutral sovereign, or in violation or contravention of
the law of nations, to do various things, one of which
is carrying articles considered and deemed to be con-
traband of war, according to law or the modern usages
of nations, for the use or service of either of the con-
tending parties. That warning is addressed to them to
apprise them that if they do these things they will have
to undergo the penal consequences by the statute, or by
the law of nations, in that behalf imposed or denounced.
In those cases in which the statute is silent, the govern-
ment is powerless, and the law of nations comes in.
NEUTRALITY. 305
" The law of nations exposes such persons to have
their ships seized, and their goods taken and subjected
to confiscation, and it further deprives them of the
right to look to the government of their own country
for protection. And this principle of non-interference
in things which the law does not enable the govern-
ment to deal with, so far from being a violation of the
duty of neutrality which the government is anxious
to comply with is in accordance with all the princi-
ples wliich have been laid down by jurists, and more
especially by the great jurists of the United States." '
Continental View upon the Subject of Governmental
Control of the Acts of Individuals. The views above
expressed are those which have long been held upon
this subject in England and the United States. Most
Continental writers are at variance with this, and con-
tend that more or less of direct governmental inter-
ference is necessary. This difference of view arises
from the fact that the governments of nearly all the
Continental states of Europe are highly centralized in
character, and all commercial undertakings are there-
fore subject to a more or less complete governmental
supervision and control. This is the case in time of
peace, and is an incident of internal administration.
In time of war it is extremely easy for any of these
governments to regulate, or even to effectually pro-
hibit, contraband trade on the part of its subjects, if it
is deemed desirable to do so as a matter of state poli-
cy. In England and the United States no such super-
1 Lawrence's "Wheaton, pp. 813, 814, citing remarks of Solicitor-
General Layard in the House of Commons, Feb. 22, 1862. See also
"Annual Message of President Pierce," 1854, "Executive Docu-
ments of the United States," 1854-1855.
20
306 OUTLINES OF INTERNATIONAL LAW.
vision exists in time of peace ; and it could be estab-
lished in time of war only as the result of legislation
upon the subject, and could be maintained only at
great expense, and at the constant risk of violating
some of the existing constitutional guarantees of indi-
vidual right.
10. Neutral Rights. A neutral state, as such, re-
ceives no addition to its sovereign rights, either in
number or extent, at the outbreak of war. It is at
peace with both belligerents, and they have no more
right to commit acts of hostility within its jurisdiction
in time of war, than in time of peace. The neutral,
therefore, may not only insist 'upon a complete immu-
nity from such acts of belligerency, but may use force
to compel respect to its sovereignty within the sphere
of its exclusive jurisdiction, and to resist acts of ag-
gression originating with either belligerent, and di-
rected against the neutral state, or against the other
belligerent, in neutral territory.
Violations of neutral right have occurred not infre-
quently in the past, and," as the sphere within which
neutral rights are each year more strongly insisted
upon is steadily increasing, such violations are likely
to occur quite as frequently in the future. A neutral
state may therefore insist (1) upon an entire immu-
nity from acts of belligerency within its territorial
waters. A public vessel, by sailing through the coast
sea of a neutral state, in no way violates its neutrality.
This is especially true when the act is done in the
simple prosecution of a voyage, and when not in pur-
suit of the enemy. It has been seen that a belligerent
vessel, either public or private, is entitled to an asylum
in the port of a neutral from danger of capture by
NEUTRALITY. 307
an enemy as well as from the perils of the sea. An
armed vessel, therefore, which pursues an enemy into
neutral waters, or effects a capture there, has violated
the sovereignty of the neutral state. It may be forci-
cibly compelled to desist from the pursuit, and all
captures made by it in neutral jurisdiction are illegal,
and must be restored. The sovereignty of the neu-
tral state has been invaded, and it may resort to such
measures of prevention, or redress, as it may deem best
suited to the emergency of the case.
(2.) A neutral state is entitled to a similar immunity
from acts of belligerency on land. Troops fleeing
from an enemy may seek an asylum in neutral terri-
tory. They must release their prisoners, however, give
up all booty and captured property, and surrender
their arms during the period of their sojourn upon
neutral soil. The enemy must cease his pursuit at
the neutral boundary. Should he continue it farther
his act is one of invasion, and would be properly re-
garded as an act of hostility by the neutral state
whose sovereignty is offended. Should either bellig-
erent undertake to perform acts, within the territory
of a friendly state, which are inconsistent with the
neutrality of that state, the neutral may not only cause
such acts to be immediately desisted from, but may
punish the agents of the belligerent, if their acts are
in violation of its municipal laws, or may forcibly eject
them from its territory.
This subject is illustrated by the cases of the Ches-
apeake and the Florida.
Case of the Chesapeake. The Chesapeake was one of
a line of passenger steamers plying between the ports
of Xew York and Portland, Maine. In 18G3, Avhile on
308 OUTLINES OF INTERNATIONAL LAW.
her way between those points, she was forcibly seized
by a number of her passengers, who claimed to be in the
naval service of the Confederate States. In effecting
the seizure several of the crew were killed and wound-
ed, and the rest were set on shore. The vessel was
navigated for a short time by its captors, but was final-
ly abandoned by them, in an unfrequented bay on the
coast of Nova Scotia. She was afterward found and
seized, in British territorial waters, by a public armed
vessel of the United States. The act was complained
of by the British government as a violation of its neu-
trality, and a demand was made that the vessel be sur-
rendered and the prisoners restored to British soil.
The demand was acceded to by the United States, who
disclaimed any intention of exercising any authority
within the territorial jurisdiction of Great Britain.
The government of the United States, in complying
with the demand for the surrender of the property
and persons, proposed that those who had been con-
cerned in the forcible seizure of the vessel should be
surrendered, with a view to their prosecution for the
crime of piracy. The British government declined to
consider this proposition until the captured persons
had been returned to its territorial jurisdiction. The
ship was afterward restored to its owners. 1
Case of the Florida. In 1864 the Confederate war
steamer Florida entered the port of Bahia, Brazil, for
the purpose of obtaining coal and provisions, and of ef-
fecting some necessary repairs. "While thus engaged,
the "Wachusett, a public armed vessel of the United
States, entered the same port. The Brazilian govern-
1 Bevel's Wheaton, pp. 498, 499; Dana's Wheaton, p. 210, note.
NEUTRALITY. 309
nient, fearing a conflict, took such precautions as it
deemed proper to prevent its occurrence, and, in ac-
cordance with its port regulations, assigned an anchor-
ing-ground to each of the belligerent vessels. The
commander of the "Wachusett, taking advantage of
the absence, at night, of a number of the officers and
crew of the Florida, sent a boat's crew to attach a
cable to the Confederate steamer, towed her out of
the harbor, and conveyed her as a prize to the United
States. This flagrant violation of neutral rights was
at once complained of by the Brazilian government.
The act was promptly disavowed by the United States.
An apology was offered, and reparation made by sa-
luting the Brazilian flag in the port of Bahia. The
crew of the Florida were restored to Brazilian juris-
diction. The captured vessel foundered in Hampton
Roads, under circumstances which were satisfactorily
explained to the Brazilian government. 1 " The resti-
tution of the ship having thus become impossible, the
President expressed his regret that the sovereignty of
Brazil had been violated, dismissed the consul at Bahia,
who had advised the offence, and sent the commander
of the Wachusett before a court-martial." a
NEUTBAIJTY LAWS.
11. Those municipal laws of a state which are intended
to prevent violations of its neutrality in time of war
are called, in general, neutrality laws. The title varies
in different states, and in many cases is based upon
1 Boyd's Wheaton, p. 499; Hall, p. 544; Dana's Wheaton, p. 209,
note. See also Secretary Seward's letter of explanation, "Foreign
Relations of the United States," 1863, 1864.
a Bernard, "Neutrality of England," etc., p. 433.
310 OUTLINES OF INTERNATIONAL LAW.
the particular violation of neutrality which was first
made the subject of positive legislation. 1
Neutral Obligation Determined by International, not
Miinicipal,Law. It has been seen that the neutral
obligation of a state is determined by international,
and not by municipal, law. The conduct of every
state, which assumes the position of a neutral in war,
is therefore measured by the standard of International
Law. If it fails in the performance of a neutral duty,
it cannot plead the inefficiency of its municipal laws
in extenuation of its offence, nor will an exact and rig-
orous enforcement of such laws be regarded as a ful-
filment of its obligation, if their provisions are not in
accordance with the international standard. The neu-
trality laws of a state may therefore be, in point of
efficiency, less than, equal to, or greater than the stand-
ard of neutral obligation as determined by the law of
nations ; or there may be no such municipal laws. In
all these cases the responsibility of the state is precise-
ly the same.
Most modern states, however, have covered this field
of legislation more or less completely, either with posi-
tive laws, defining rules of conduct for persons subject
to their jurisdiction, and imposing suitable penalties
for their violation ; or by general laws, or constitutional
provisions, vesting discretionary powers in certain de-
partments of government, to be used for the purpose
of preventing violations of neutrality on the part of
1 In England the first legislation on the subject \vas caused, in the
time of James I., by the enlistment of recruits in England for ser-
vice in other European armies. For this reason the British neu-
trality laws have received the name of the "Foreign Enlistment
Act."
NEUTRALITY. 31 1
individuals. Violations of neutral duty by a state, in
its corporate capacity, are questions of state policy
that are rarely made the subject of municipal legisla-
tion. Neutrality laws, as such, have chiefly to do with
the acts of individuals. They permit or forbid partic-
ular acts, and vest suitable powers of enforcement in
certain officials, or departments of government.
English Neutrality Laws. The first legislation in
England on the subject of neutrality was had in the
reign of James I. The statute was intended to regu-
late, rather than prohibit, the enlistment of British sub-
jects in foreign services. 1 This statute was twice amend-
ed during the reign of George II., each time in the di-
rection of greater severity. 2 The first general law on
the subject of neutrality was the Foreign Enlistment
Act passed in 1819, during the regency. 3 It remained
in force until 1870, when the present act was passed. 4
" The statute of 1819 was, with a few unimportant
exceptions, never attempted to be enforced until the
period of the American Civil War. Its deficiencies
were then fully discovered, and the escape of the Ala-
bama, the Treaty of Washington in 1871, and the
Geneva Arbitration were the grave consequences." &
The neutrality laws now in force in the British em-
pire are those contained in what is known as the For-
eign Enlistment Act of 1870. They extend to all the
dominions of Her Majesty, including the adjacent ter-
ritorial waters. The act forbids British subjects to
accept, or agree to accept, a commission in the niili-
1 3 James I., chap. 4.
9 9 George II., chap. 30; 29 George II., chap. 17.
8 59 George III., chap. 69. 4 33 and 34 Victoria, chap. 90.
* Phillimore, vol. iii., p. 244
312 OUTLINES OF INTERNATIONAL LAW.
tary or naval service of a state at war with any state
with which Her Majesty is at peace ; to leave the realm
with intent to engage in such service, or to induce
another person to embark under false representations
as to such service; and imposes a penalty upon any
master of a ship who knowingly takes such persons
on board ship, with intent to carry them to such state.
It is also forbidden under severe penalties of fine and
imprisonment
(a.) " To build, or agree to build, or to cause to be
built, any ship with intent or knowledge, or having
reasonable cause to believe that the same shall or will
be employed in the military or naval service of any
foreign state at war with any friendly state.
(5.) " To issue or deliver any commission for any
ship with intent or knowledge, or having reasonable
cause to believe, that the same shall or will be em-
ployed in the military or naval service of any foreign
state at war with any friendly state.
(c.) " To equip any ship, with intent or knowledge,
or having reasonable cause to believe, that the same
shall or will be employed in the military or naval ser-
vice of any foreign state at war with any friendly state.
(d.) " To despatch, or cause, or allow to be despatched,
any ship with intent or knowledge, or having reason-
able cause to believe, that the same shall or will be
employed in the military or naval service of any for-
eign state at war with a friendly state."
When a ship is built by the order of a foreign state,
at war with a friendly state, the presumption is that
it is intended for the naval service of the former state.
It is also forbidden to increase the armament, equip-
ment, or force of such ships, or to aid in their con-
NEUTRALITY.
struction or equipment, and it is also forbidden to fit
out, or aid or assist in fitting out, any expedition
against the dominions of a friendly state. The ships
engaged in such acts are to be forfeited, and penalties
of fine and imprisonment are to be imposed upon all
persons violating any of the provisions of the act. 1
The provisions of this act are of the most stringent
character, and, if rigidly enforced, are calculated to
prevent any act, on the part of any person within the
jurisdiction of Great Britain, which can, in the re-
motest degree, compromise the neutrality of the Brit-
ish government.
Neutrality Laws of the United States. The neutral-
ity laws of the United States are chiefly contained in
the acts of June 5, 1794, and April 20, 1818. By these
acts it is declared a misdemeanor for any citizen of
the United States to accept or exercise a commission
to serve a foreign state in war against any friendly
state ; or to enlist, or enter himself, or hire or retain
another person to enlist, or to go beyond the jurisdic-
tion of the United States to enlist, or with intent to
be enlisted, into such foreign service, or to fit out or
arm ; or to increase or augment the force of any armed
vessel, with the intent that such vessel shall be em-
ployed in the service of a power at war with a friend-
ly state ; or to begin, set on foot, or provide or prepare
the means for, any military expedition or enterprise
against the territory of any foreign state with whom
the United States is at peace.
The President is authorized to compel any foreign
vessel to depart, which, by the law of nations or by
1 33 and 34 Victoria, chap. 90.
314 OUTLINES OF INTERNATIONAL LAW.
treaty, ought not to remain within the territorial
waters of the United States, and is given power to
use the public armed force to carry the provisions of
the act into effect, and to enforce the observance of
the neutral duties required by law. 1
It is worthy of remark that the neutrality laws of
the United States, though passed nearly seventy years
ago, are at the present time fully in accordance with
the standard of neutral obligation as determined by
International Law.
The laws of both England and the United States
are silent upon the question of the manufacture and
sale of contraband of war, within their territorial ju-
risdiction, except in the case of building, arming, or
equipping ships, fitted for, or adapted to, warlike uses.
Dealing in contraband is forbidden in England, by
proclamation, at the outbreak of a foreign war. It
has never been forbidden in the United States. The
policy of both governments has been to leave this
question to be regulated by belligerents, in the exer-
cise of the powers placed in their hands, for that pur-
pose, by the law of nations.
Neutrality Laws of Other States. The provisions
of the French law on the subject of neutrality are
those contained in Articles 84 and 85 of the Penal
Code. The first of these imposes a penalty of banish-
ment for any conduct of a subject which, without the
approval of his government, exposes the state to a
declaration of war. If war actually results, the pun-
ishment is increased to transportation. The second
article punishes with banishment any acts, of a subject,
1 "Revised Statutes of the United States," 1029-1031.
NEUTRALITY.
calculated to expose Frenchmen to reprisals. The pre-
cise acts which are so punishable are left to judicial
determination, and, thus far, but three cases have
arisen in which the laws were regarded as applicable.
The responsibility of making suitable regulation on
the subject of neutrality rests, in France, upon the
government, and is usually made the subject of proc-
lamation, whenever the outbreak of war makes it nec-
essary for France to assume an attitude of neutrality.
The task of the government in this respect is made
easy of performance by the fact that the manufacture
and sale of the most offensive forms of contraband of
war, such as powder, fire-arms, ammunition, and pro-
jectiles, are made the subject of state regulation. It
is, therefore, not difficult for the government, at the
outbreak of war, to impose such additional restrictions
upon the manufacture and sale of contraband articles
as will effectually prevent violations of its neutrality.
The absence of positive law on the subject enables
France to adapt its neutrality regulations to the stand-
ard of International Law at any particular epoch ; an
advantage which is shared by all of the highly cen-
tralized governments on the continent of Europe. The
law and practice of Belgium, Brazil, Italy, Holland,
Russia, Spain, and Portugal are similar to those of
France. Austria and Prussia have no laws upon the
subject, and seem to need none, as ample powers to
prevent violations of neutrality are vested in the re-
spective governments. The laws of Denmark and
Sweden are quite elaborate, resembling in many re-
spects those of England and the United States. 1
12. Case of the Alabama. The most conspicuous
1 "Report of English Neutrality Laws Commission of 1870," p. 40.
316 OUTLINES OF INTERNATIONAL LAW.
illustration, in recent times, of the failure of a state
to observe its neutral obligations, is that afforded by
the case of the Alabama.
The complainant in the case was the United States.
The injury alleged was that certain aid had been ob-
tained by the Confederate States in England during
the rebellion.
The services which were made the ground of com-
plaint are susceptible of classification under two heads :
(#.) The obtaining of arms and munitions of war by
the Confederate States in England.
(5.) The fitting -out of hostile expeditions within
English jurisdiction.
These causes of complaint will be discussed sepa-
rately. The first of them furnished no reasonable
ground of complaint to the United States ; the second
constituted a violation of the law of nations.
The Obtaining of Arms and Munitions of War.
The outbreak of the civil war in America found both
parties to its operations but poorly prepared for a con-
test of the magnitude which that struggle immediately
assumed, and both belligerents were obliged to have
recourse to foreign markets for the supplies of arms
and munitions necessary to enable them to place great
armies in the field. " The demands of the war, as it
advanced, were met in large measure by private manu-
facturers in the Northern States ; but the export of arms
and military stores went on freely and without inter-
mission, so long as the struggle lasted, and the supplies
drawn by the Federal government from [England]
appear to have considerably exceeded in value those
obtained by the South.
" An export trade, more or less considerable, in arms
NEUTRALITY.
317
and munitions of "war, was carried on from England
to both the northern and southern ports of the United
States. Whether the goods were purchased ia the
English market by persons who came over for the pur-
pose, or were shipped to order, or were consigned for
sale in America on account of the shippers ; whether
the purchases were effected by agents of the two gov-
ernments respectively or by private speculators, and
whether these agents or speculators were American or
English firms trading in New York or firms trading
in Charleston, I do not know, and it is absolutely im-
material to inquire. Xone of these circumstances
could affect in the slightest degree the character of
the transaction. Articles of military use, when trans-
ported over sea, to the ports of either belligerent in
neutral ships, are, during the transit, designated con-
traband, and may be captured under the neutral flag,
the neutral carrier suffering the loss of his freight,
and getting no compensation for the interruption of
his voyage and the breaking-up of his cargo." l
1 Bernard, "The Neutrality of Great Britain during the Ameri-
can Civil War," pp. 332, 333. In Sir Montague Bernard's able
work, from which the above citation is made, the following table
appears. It purports to give the total value of exports of arms and
munitions of war to the United States and to the British West Indies
during the period of the civil war. It is interesting as showing the
amount of contraband trade that went on during that period.
Years.
Shipments to the
United States.
Shipments to
British West Indies.
1860
45,076
6,050
1861
119,555
59,110
1862
999,197
367,578
1863
425,081
200,402
1864
36,802
74,983
1865
23,625
29,420
1866
82,345
4,795
318 OUTLINES OF INTERNATIONAL LAW.
With these transactions, whatever part may have
been taken in them by British subjects or others with-
in British jurisdiction, International Law has nothing
to do ; and of these acts, whether of dealing in, or car-
rying contraband, or violating the blockade, the United
States had no valid reason to complain. On the con-
trary, on at least two previous occasions, the last of
them but a few years previous to the outbreak of the
rebellion, citizens of the United States had themselves
openly engaged in similar practices, with the full knowl-
edge and presumed consent of their own government,
as expressed in the annual message of its chief execu-
tive. 1
The Fitting-out of Hostile Expeditions within Eng-
lish Jurisdiction. " Among the most pressing needs
of the Confederates was that of sea-going ships capa-
ble of being used for war. Such vessels as they pos-
sessed were, for the most part, very small. There was
probably not one of these which could have ventured
to engage a Federal cruiser of any class without cer-
tain destruction. In coast warfare they were able to
achieve one or two brilliant, though unprofitable, suc-
cesses. But the construction of a large sea-going steam-
er seems to have been beyond their power ; their only
ships were such as had fallen into their hands ; and
they either had not the materials and machinery for
turning out marine steam-engines, or were unable to
use them." a
To enable the Confederates to overcome this dispar-
ity of force at sea a scheme was projected of procur-
1 Message of President Pierce, 1854, "Executive Documents of
the United States," 1854, 1855.
1 Bernard, "The Neutrality of Great Britain," etc., p. C3G.
NEUTRALITY.
ing by purchase, in England, a number of war-steam-
ers for the Confederate navy. This undertaking was
/ o
quite different from those that had preceded it, inas-
much as it was proposed that these vessels, so soon as
they had been completed and equipped 'for war, wheth-
er in England or elsewhere, should, without being sent
to any port within the jurisdiction of the Confederacy,
at once engage in hostile operations against the United
States. With this end in view, agents were despatched
to England with instructions to arrange for the pur-
chase, or construction, of a number of swift and pow-
erful steamers. These agents were to arrange all the
details of purchase or manufacture of armament and
equipment, and were to transfer them, when complet-
ed and ready for service, to certain designated officers
of the Confederate navy.
These instructions were carried out in all their es-
sential details. The ships, three in number, which
were afterward known as the Florida, Alabama, and
Shenandoah, were purchased or constructed in Eng-
land. Their armament and equipment were obtained,
and a portion of their crews enlisted, in British terri-
tory, without encountering any obstacles which do not
seem to have been overcome without special difficulty.
In every case the ships left England without guns or
ammunition on board, and but partly manned ; and in
every case the articles needed to prepare the vessel
for active service, and a part or the whole of the crew,
were shipped from England by another vessel; the
equipment being completed at a point previously agreed
upon, usually in neutral waters, and never within Brit-
ish jurisdiction.
The question now arises as to what was the rule or
320 OUTLINES OF INTERNATIONAL LAW.
usage of International Law upon the subject of neu-
tral duty in 1861 ; for by that rule the responsibility
of England, as a neutral power, must be determined.
It has been seen that the neutral obligation of a
state, at any time, is fixed and determined by interna-
tional, and not by municipal, law. It has also been
seen that that obligation is the same, whatever may
be the provisions of municipal law upon the subject ;
indeed, it is not at all necessary that its municipal
laws should contain any such provisions. Their exist-
ence presumes an intention, on the part of a state, to
fulfil its neutral duties. Their absence may imply the
contrary ; or it may imply that some department of the
government has sufficient power in the premises to
make such provisions unnecessary. If they exist, and
are inadequate to the purpose, their inadequacy can-
not be pleaded in extenuation of a violation of neutral
duty ; if they do not exist, their absence cannot be
alleged to excuse a failure to observe a neutral obliga-
tion ; nor, finally, can their enforcement, by obscuring
the real issue involved, or by distracting the atten-
tion of a neutral state from its real responsibility,
at all diminish that responsibility, or change its char-
acter.
In this connection two questions arise. The first is,
did war exist ? If there was not in existence at that
time an open, public war, there could be no belliger-
ents, and consequently no neutrals; and, whatever
may have been the relation existing between England
and the United States, it was not that of a neutral to
a belligerent. This question hardly admits of discus-
sion. When insurrection or rebellion occurs in a state,
two courses of proceeding are open to the central gov-
NEUTRALITY. 321
eminent, either of which may be pursued in its sup-
pression. These are :
(a.} The method by Municipal Law, in which the at-
tempt is made to restore the supremacy of the govern-
ment by a rigid enforcement of the criminal law, mil-
itary force being used to support the civil authority.
(.) The method by International Law, involving the
recognition of the insurgents as having belligerent
rights, and the use of military force in accordance
with the laws of war.
The United States chose the latter method. This
made it necessary for other powers to follow its ex-
ample, and to recognize the insurgents as belligerents,
which they did by the issue of proclamations of neu-
trality. By the issue of such a proclamation England
assumed the attitude of a neutral, and by so doing be-
came charged with the duties, and vested with the
rights, of a neutral state in time of war.
Standard of Neutral Obligation in 1861. The next
question is, what was the standard of neutral obliga-
tion, as at that time recognized and sanctioned by the
law of nations ? To the answer of this question it is ;
perhaps, fortunate that the injuries which made the
rule necessary, and the deduction of the rule itself,
were then relatively recent events, and so were pre-
sumably fresh in. the minds of those by whom the
government of England was carried on.
During the years between 1789 and 179-i, England
and France being then belligerents, several attempts
were made, by agents of France in the United States,
to fit out and arm certain ships to prey upon English
commerce. Upon proper representation, in behalf of
the latter power, the government of the United States
21
322 OUTLINES OF INTERNATIONAL LAW.
took the most vigorous measures to bring about a dis-
continuance of the practice, and, to enable similar ac-
tion to be taken in future cases of the same kind, the
Neutrality Act of 1794 was passed.
During the period between 1816 and 1818 similar
attempts were made to fit out and arm vessels, within
the jurisdiction of the United States, to operate against
Spanish commerce, under commissions, or letters of
marque, from the revolted Spanish colonies in Central
and South America. In this instance the Spanish min-
ister " complained that some thirty vessels, specifically
named, the property of American citizens, were thus
preying on Spanish commerce. The representative of
Portugal made similar complaints." l To remedy this
wrong the United States Neutrality Act of 1818 was
passed. It was more stringent in its provisions than
had been that of 1794, and was, for that reason, better
calculated to prevent acts on the part of individuals
which were likely to compromise the neutrality of the
United States.
Similar practices were resorted to in England, and,
proper representations having been made by Spain, an
attempt was made to remedy the wrong complained
of, by the passage of the " Foreign Enlistment Act of
1819," the first British neutrality act which was in-
tended to have general application, and to prevent
and punish acts of individuals which might have the
effect of compromising the foreign relations of Great
Britain as a neutral power. This act was in force
during the period of the Civil War.
1 Opinion of Sir Alexander Cockburn in the Geneva case, " For-
eign Relations of the United States," 1872, "Geneva Arbitration/
vol. iv., p. 256.
NEUTKALITY. 323
Here are three instances in each of which a sovereign
state, in the most solemn and formal manner, recog-
nizes the fact that the acts of fitting-out and arming
or equipping of expeditions, within its jurisdiction, for
the purpose of carrying on hostilities against a friend-
ly state, are not only unjust and wrong, but are so far
opposed to the law and usage of nations as to consti-
tute a serious violation of neutrality on the part of the
government permitting them.
Conclusion as to Neutral Obligation. In the face of
these facts, it is useless to cite the opinions of text-
writers. Their views and opinions are based upon such
facts, and the rules deduced by them, to have value,
must be supported by just such instances of interna-
tional usage and intercourse. The conclusion based
upon these facts must therefore be that, as the law of
nations stood in 1861, the fitting-out, arming, or equip-
ping, within the jurisdiction of a neutral state, of a
vessel intended to cany on direct hostile operations
against a friendly state, was a violation of Interna-
tional Law.
It has been seen that, during the continuance of the
civil war, three war-steamers were obtained by the
Confederate States, in England, by purchase and con-
struction. Over the acts of those persons within its
jurisdiction, who had to do with such purchase and
construction, the British government had undisputed
control. Its duty and responsibility in the premises
should have been known to the individual members of
the government ; and the ease with which the Ameri-
can minister was able to obtain detailed information
as to the purpose and ultimate destination of these
vessels shows that no insuperable difficulties lay in the
324: OUTLINES OF INTERNATIONAL LAW,
way of its obtaining similar knowledge, upon which
to act in the performance of its neutral duty.
Manner in which the Neutral Duty of England was
Performed. In the performance of its duty as a neu-
tral, however, the British government displayed not
only a singular and unusual lack of energy and vigi-
lance, but a more remarkable failure to discern the
true point at issue. In a manner entirely in accordance
with English tradition, it seems to have been taken
for granted that a more or less vigorous enforcement
of the existing neutrality laws would constitute a suf-
ficient performance of its neutral duty, and a sufficient
fulfilment of its neutral obligation. The action of the
government, therefore, was not only confined to the
enforcement of its neutrality law, but a peculiar con-
struction was placed upon that law, by which it was
deemed no violation of its provisions to construct a
ship, even for an admitted warlike purpose, if no por-
tion of its equipment and armament was contributed
by its builders, or placed on board within British terri-
torial jurisdiction.
Responsibility of England in the Case. From what
mistaken view of international duty such an idea was
deduced it is not necessary to discuss here. Acts like
those of which the United States complained were op-
posed to the usages of nations, because they constituted
hostile attempts against a friendly power, and origi-
nated within neutral jurisdiction. A belligerent has
no right, or color of right, to interfere in any manner
with the internal administration of a sovereign state.
He must judge of the attitude and intentions of that
state by its acts, or by the acts of individuals which
have originated within its territory. If an act of hos-
NEUTRALITY. 335
tility originate in a neutral state, it matters not by
whom it is committed, the neutral is entirely respon-
sible for its effects and results, whatever they may be ;
and no other course is open to a belligerent than to
hold such neutral to a strict accountability for events
over which he has, and may exercise, a jurisdiction in
every way adequate to his responsibility.
Later History of the Confederate Cruisers. Of the
three cruisers whose origin has been alluded to the ca-
reer may be briefly told. The Florida, on Aug. 11,
1862, completed her armament in neutral West Indian
waters, and entered upon her duty of destroying mer-
chant vessels. Her career was terminated in October,
1864, by her illegal capture in the port of Bahia, Brazil.
The Alabama, in spite of the urgent remonstrances
of the American minister, effected her departure from
English waters on the 29th of July, 1862. Her arma-
ment and crew were placed on board at Angra Bay,
in the Azores Islands, near the end of the following
month. After a most eventful career, during which
she succeeded in capturing or destroying fifty-eight
merchant-vessels, she was defeated and sunk in an en-
gagement with the United States steamer Kearsarge,
off the port of Havre, France, on June 19, 1864.
The Shenandoah, a steamer formerly engaged in the
China trade, attracted the attention of the Confederate
agents in London by her speed and superior sailing
qualities, as well as by her adaptability to the purposes
which they had in view. She was, therefore, purchased,
and on October 8, 1864, cleared from the Thames, osten-
sibly for Bombay. Her real destination, however, was
the Island of Madeira, whither a tender had preceded
her, containing her armament and crew. The transfer
326 OUTLINES OF INTERNATIONAL LAW.
was effected in neutral jurisdiction, as in the preceding
cases, about October 21st of the same year. The evi-
dence submitted in the case of this vessel satisfied the
Geneva Board of Arbitration that no responsibility at-
tached to the British government for her conduct up
to the date of her arrival at Melbourne, Australia.
The circumstances attending her conduct there should
have caused her detention, but did not, and for her acts,
after the date of her departure from Melbourne, the
British government was held responsible. The career
of this vessel is remarkable from the fact that she con-
tinued to make captures, in the North Pacific, after the
termination of hostilities in the civil war. Upon being
notified of the peace in July, 1865, she was conveyed
by her captain to Liverpool, and was there surrendered
to the British government. 1
Result of their Operations. The result of the opera-
tions of these vessels and their tenders was, in effect,
to destroy the merchant marine of the United States.
Such of its ships as escaped capture or destruction were
transferred to foreign flags, to secure an immunity
from capture by acquiring the neutral character. The
question continued an open one between the govern-
ments for a number of years, subjecting their relations
to a constant strain, and at times taking such a turn as
to render war between them a not unlikely occurrence.
Several attempts at settlement were made, but without
success, owing to the excited state of feeling at the
time. The question was finally put in the way of ad-
justment by the negotiation of the Treaty of Wash-
ington, in 1871.
1 For Captain Waddell's letter to the Secretary of Foreign Affairs,
surrendering this vessel, see Bernard, pp. 434-436.
NEUTRALITY. 397
THE GENEVA ARBITRATION.
13. The most striking and successful example of the
settlement of an international difference of the gravest
character, by a resort to the principle of arbitration, is
furnished by the adjustment of the dispute between
the United States and England growing out of the
Alabama claims.
Unsuccessful Attempts at Settlement. It was impos-
sible that a difference of such serious importance could
long exist without endangering the friendly relations
of the two powers, and, at different times between the
years 1863 and 1869, efforts were made with a view to
its adjustment. None of them, however, were success-
ful. The first attempt was made, in 1863, by Mr.
Adams, the United States minister to England. He
submitted a proposition which was held under advise-
ment, for a time, by the British cabinet, but was final-
ly declined in 1865. Another effort was made in 1866,
and negotiations were continued until, in January,
1868, they were broken cff, apparently without hope
of renewal. In 1869 they were again renewed by Mr.
Keverdy Johnson, who had succeeded Mr. Adams as
the American representative in England. An agree-
ment was entered into, between Mr. Johnson and the
Earl of Clarendon, by which the claims were to be re-
ferred to a commission selected by the interested pow-
ers. This agreement was not ratified by the United
States Senate, a co-ordinate branch of the treaty-mak-
ing power in that state, and thus, for the third time,
the efforts at adjustment were abandoned.
The Treaty of Washington. In 1870 a dispute arose
between the United States and Canada, as to the rights
328 OUTLINES OF INTERNATIONAL LAW.
of American citizens to participate in the fisheries in
certain British territorial waters of North America.
As the agitation of the question seemed likely to in-
troduce a new element of difficulty into the complica-
tions already existing between the two governments, a
proposal was submitted, through the British minister,
to the government in Washington for the appoint-
ment of a Joint Commission. The commission was to
be composed, in equal numbers, of members selected
by each government, and was to be charged with the
adjustment, not only of the fishing dispute, but of all
questions which might affect the relations of the United
States with the British possessions in North America.
To this proposition a reply was made, in behalf of
the United States, that the project of the commission
would not be favorably considered, unless its powers
were extended to include the settlement of the differ-
ences which had arisen, during the civil war, out of
the acts committed by Confederate cruisers; which
had given rise to the demands known as the Alabama
Claims. 1
The proposition of the United States was accepted,
and an agreement was entered into providing for the
organization of a commission of ten members, selected
in equal numbers by the governments of England and
the United States. The commission was to sit in the
city of "Washington, and was to address itself to the
task of providing a means of adjusting all causes of
difference then existing between the two countries.
The commission thus provided for met in Washing-
ton on March 4, 1871. Its labors terminated on May
1 Eevue de Droil International, tome iii., 1871, p. 113
NEUTRALITY. 329
8, with the completion and signature of the Treaty of
Washington. That instrument provided for the ref-
erence of the Alabama Claims to a tribunal of arbi-
tration to be composed of five members. Of these one
was to be selected by each of the contracting parties,
and one each by the King of Italy, the President of
the Swiss Confederation, and the Emperor of Brazil.
The tribunal was to meet in Geneva, on the earliest
convenient day after the nomination of its members.
A case was to be submitted, by each of the contract-
ing parties ; and within four months thereafter either
party might, in its discretion, submit a counter case in
reply to the evidence and correspondence adduced by
the other in support of its claim.
The tribunal, in deciding the case, was to be guided
by three rules which were incorporated in the treaty,
and mutually agreed to by the litigant powers. The
agreement on the part of Great Britain was qualified
by the declaration that "Her Majesty's government
cannot assent to the foregoing rules as a statement of
principles of International Law which were in force
at the time when the claims mentioned arose, but that
Her Majesty's government, in order to evince its de-
sire of strengthening the friendly relations between
the two countries, and of making satisfactory provis-
ion for the future, agrees that in deciding the questions
between the two countries arising out of these claims,
the arbitrators should assume that Her Majesty's gov-
ernment had undertaken to act upon the principles set
forth in the rules." '
The three rules are, " A neutral government is bound,
1 "Treaties and Conventions of the United States," p. 416.
330 OUTLINES OF INTERNATIONAL LAW.
(#.) " To use due diligence to prevent the fitting-out,
arming, equipping, within its jurisdiction, of any ves-
sel which it has reasonable ground to believe is in-
tended to cruise or carry on war against a power with
which it is at peace ; and also to use like diligence to
prevent the departure from its jurisdiction of any ves-
sel intended to cruise or carry on war as above, such
vessel having been specially adapted, in whole or in
part, within such jurisdiction, to warlike use."
(&.) "Not to permit or suffer either belligerent to
make use of its ports or waters as a base of naval op-
erations against the other, or for the purpose of the
renewal or augmentation of military supplies or arms,
or the recruitment of men."
(c.) " To exercise due diligence in its own ports and
waters, and, as to all persons within its jurisdiction,
to prevent any violations of the foregoing obligations
and duties."
Decision and Award, The decision of the tribunal
was to be rendered, if possible, within three months
after the arguments on both sides had been closed. It
was to be in writing, prepared in duplicate, and signed
by the arbitrators who assented to it. The question
referred for decision, as to each vessel separately, was
" whether Great Britain has, by any act of omission,
failed to fulfil any of the duties set forth in the
foregoing three rules, or recognized by the principles
of International Law not inconsistent with such
rules." '
" In case the tribunal finds that Great Britain has
failed to fulfil any duty, or duties, as aforesaid, it may,
1 "Treaties and Conventions of the United States," pp. 416, 417.
NEUTRALITY. 331
if it think proper, proceed to award a sum in gross, to
be paid by Great Britain to the United States, for all
the claims referred to it ; and in such case the gross
sum so awarded shall be paid in coin by the gov-
ernment of Great Britain to the government of the
United States, at Washington, within twelve months
after the date of the award." '
"In case the tribunal find that Great Britain has
failed to fulfil any duty, or duties, as aforesaid,' and
does not award a sum in gross, the high contracting
parties agree that a board of assessors shall be ap-
pointed to ascertain and determine what claims are
valid, and what amount or amounts shall be paid by
Great Britain to the United States on account of the
liability arising from such failures, as to each vessel,
according to the extent of such liability as determined
by the arbitrators." "
Meeting of the Board of Arbitration. The tribunal
met at Geneva on December 15, 1871. The full pow-
ers of the arbitrators were exchanged, and the board
was organized by the selection of Count Sclopis, the
Italian representative, as president. The cases were
submitted by the agents of the respective govern-
ments, and the tribunal directed that the counter cases,
additional documents, correspondence, and evidence
should be delivered to the secretary on or before April
15, 1872. After making some arrangements as to pro-
cedure, the tribunal, on the following day, adjourned
to meet on June 15, 1872.
Indirect Claims. In the case submitted by the
1 "Treaties and Conventions of the United States," pp. 416, 417.
332 OUTLINES OF INTERNATIONAL LAW.
United States certain claims appeared for damages
due under the heads of
1st. "The losses in the transfer of the American
commercial marine to the British flag."
2d. " The enhanced rates of insurance."
3d. " The prolongation of the war, and the addition
of a large sum to the cost of the war and the suppres-
sion of the rebellion." The consideration of these in-
direct claims by the tribunal was objected to by the
agent of the British government; and the tribunal
decided that, according to the rules of International
Law applicable to such cases, they did not constitute
a good foundation for an award, and should be wholly
excluded from the consideration of the tribunal in
making its award. This ruling was accepted by both
of the governments interested. 1
Decision of the Arbitrators. A decision was reached
by the tribunal at the session of September 9, 1872.
It was concurred in and signed by four of the mem-
bers, the English representative offering a dissenting
opinion. On September 14, after directing that a copy
of the decision should be delivered to each of the
agents of the two governments, the tribunal was dis-
solved.
Decision and Award. Before the members of the
tribunal were able to apply the rules, furnished them
in the treaty, to the decision of the case, they were
obliged to place an interpretation upon some of the
terms there used, and to define the rule of Interna-
tional Law upon certain points, which were involved
1 "Foreign Relations of the United States," "Geneva Arbitra
tion," vol. iv., p. 20.
NEUTRALITY. 333
in the judicial determination of questions not covered
by the rules themselves. It was therefore decided
(1.) That due diligence "ought to be exercised by
neutral governments in exact proportion to the risks
to which either of the belligerents may be exposed,
from a failure to fulfil the obligations of neutrality on
their part."
(2.) " The effects of a violation of neutrality commit-
ted by means of the construction, equipment, and ar-
mament of a vessel are not done away with by any
commission which the government of the belligerent
power, benefited by the violation of neutrality, may
afterwards have granted to that vessel ; and the ulti-
mate step, by which the offence is completed, cannot
be admissible as a ground for the absolution of the
offender, nor can the consummation of his fraud be-
come the means of establishing his innocence."
(3.) " The principle of exterritoriality has been ad-
mitted into the law of nations, not as an absolute
right, but solely as a proceeding founded on the prin-
ciple of courtesy and mutual deference between different
nations, and therefore can never be appealed to for the
protection of acts done in violation of neutrality." l
In the cases of the Alabama, of the Florida, and of
the Shenandoah after her departure from Melbourne
on February 18, 1865, the tribunal was of opinion that
Great Britain had failed, by omission, to perform the
duties prescribed in two or more of the rules of Article
YL of the Treaty of Washington. 9
1 "Foreign Relations of the United States," 1872, 1873, "Geneva
Award," vol. iv., pp. 49, 50.
8 The finding in the case of the Alabama was of a failure in re
334 OUTLINES OF INTERNATIONAL LAW.
The sum of $15,500,000 in gold was awarded to the
United States as the indemnity to be paid by Great
Britain, for the satisfaction of all the claims referred
to the consideration of the tribunal ; and, in accordance
with the terms of Article XI. of the treaty, it was de-
clared that " all the claims referred to in the treaty as
submitted to the tribunal are hereby fully, perfectly,
and finally settled." a
Results of the Geneva Arbitration. The effect of
the Geneva arbitration upon International Law has
been much discussed, especially in connection with a
clause in the treaty, which binds the high contracting
parties " to observe these rules as between themselves
in future, and to bring them to the knowledge of
other maritime powers, and to invite them to accede
to them." 8 Neither power is believed to have made
any special or positive efforts to include other states
in the operations of the treaty. In so far as the rules
themselves are concerned, such action seems hardly
necessary. Their effect has not been to change any
existing rule of International Law, for the strict ob-
spect to the first and third rules; in the case of the Florida of the
first, second, and third ; in the case of the Shenandoah of the second
and third respectively. The Tuscaloosa, a tender of the Alabama^
and the Clarence, Tacony, and Archer, tenders of the Florida, were
held to be involved in the lot of their principals. It was held in
the cases of the Georgia, Sumter, Nashville, Tallahassee, and Chick-
amauga that Great Britain had not failed to observe the three rules.
The cases of the Sallie. Jeff Davis, Music, Boston, and V. H. Joy,
were excluded from consideration for want of evidence. " Foreign
Relations of the United States," 1872, 1873, "Geneva Arbitration,"
vol. iv., pp. 51, 53.
l lbid., p. 53.
2 " Treaties and Conventions of the United States," p. 416.
NEUTRALITY. 335
servance of neutral obligation and duty would require
substantial compliance with their provisions, by any
neutral state, in time of war. Their chief effect has
been to define and make clear a principle already ex-
isting, and so generally sanctioned by the usage of
nations as to cause it to be regarded as a doctrine of
International Law.
Xot the least important of its effects, however, will
be found to consist in the example afforded of two
powerful states resorting to an amicable method of
terminating a dispute which had aroused, in both na-
tions, a feeling dangerously near to hostility ; and which
threatened, upon more than one occasion, to involve
them in open war.
References. For the old view of neutrality the student is re-
ferred to Vattel, book iii., chap, vii., 103-111 ; Azuni, " Maritime
Law," vol. ii., chaps, i.-v. For the views now generally accepted,
see Hall, part iv., chaps, ii.-iv. ; Boyd's "Wheaton, 405-501 ;
Halleck, vol. ii., chaps, xxiv. and xxviii. ; Creasy, pp. 570-683 ;
Manning, book v., chaps, i.-vi., and viii.-xii. ; Philliniore, vol. iii.,
pp. 225-386; "Woolsey, 163-192; Bernard, "The Neurtality of
England ;" Nys, " La Guerre Maritime," chaps, i., ii., and vi. ; Glass,
" Marine International Law," pp. 573-603 ; G. F. De Martens, vol.
ii., 305-314, and 323-326 ; Kliiber, 279-287, and 299-316 ;
Heflfter, pp. 269-286 ; Kusserow, " Les Devoirs d'un Gouvernernent
Neutre," and Hautefeuille, vol. i., pp. 195-407 ; vol. ii., pp. 1-69,
289^162 ; vol. iii., pp. 214-276, and 432-449. For a discussion of
the Alabama Case and the Geneva Arbitration, see Bernard, " Neu-
trality ot England ;" Gushing, " Treaty of Washington ;" " The
Alabama Question," by Professor Bluntschli, vol. ii., Revue de
Droit International, pp. 452-485 ; " The Geneva Arbitration," vols.
i.-iv. ; " Foreign Relations of the United States," 1872 ; Gessner,
" Sur la Reforme du Droit Maritime de la Guerre," in vol. viii.
of Revue de Droit International, and Lorirner, " The Obligations
of Neutrals."
CHAPTER XII.
CONTRABAND OF WAR.
1. THE principle of forbidding, as a matter of state
policy, the manufacture or sale of certain articles, or
even the holding of them in legal possession, has been
recognized by the municipal law of all states since the
beginning of history. The origin of the rule of Inter-
national Law on the subject of contraband of war,
however, is relatively recent, and, in its present form,
does not antedate the seventeenth century. 1
Origin of the Practice. The commercial cities of the
Mediterranean had but little interest in asserting such
a right against each other, since each of them claimed
exclusive control erf what it regarded as its own field
of commerce, and was not disposed to surrender any
portion of it, even in time of war. Moreover, a large
part of their trade with the East, especially that of
Venice and Genoa, was in articles which would now be
regarded as contraband of war. It is, therefore, very
1 So early as the thirteenth century it had become the usage for
powerful sovereigns to forbid all trade with their enemies in time of
war. Such an instance occurs in a treaty of Edward III., of Eng-
land, with the Flemings, in 1370. Francis I., in 1543, forbade his
allies and confederates to deliver munitions of war to his enemy.
Grotius was the first writer of standard authority to discuss the sub-
ject. Although the transport of certain articles is forbidden in trea-
ties of an earlier date, the Treaty of the Pyrenees, in 1C59, and that
of Utrecht, of 1713, seem to have been most effective in determin-
ing the present rule on the subject of contraband of war.
CONTRABAND OF WAR. 337
unlikely that they would have advocated, or e\en fa-
vorably considered, a principle, the application of which
would have seriously injured, if it did not entirely de-
stroy, a most lucrative branch of their commerce. The
adoption of the modern rule was thus deferred until
the northern and western European powers had begun
to acquire maritime importance, and to carry on hos-
tile undertakings against each other at sea.
So soon as interstate commerce became general it
was seen that certain kinds of trade, if carried on dur-
ing the existence of a war, were calculated to injure
belligerents to such an extent as to make it necessary
for them to cause, at least, their temporary discontinu-
ance ; and to justify them, in the exercise of the right
"of self-defence, in resorting to such measures of pre-
caution as would neutralize their injurious effects. It
was not difficult to find a remedy, when the trade com-
plained of was carried on by a state in its corporate
capacity, since it constituted a violation of neutrality,
and was punishable as such.
Where the objectionable commercial undertakings
originated with individuals, however, it was less easy,
to provide a remedy. On land it was soon found to be
impossible to prevent contraband trade, unless the bel-
ligerent himself controlled the neutral frontier, or the
neutral state was willing to resort to such elaborate
police measures as would effectively prevent the con-
veyance of contraband articles across its boundaries.
Its attempted regulation on land, therefore, was soon
abandoned. At sea, however, the matter could be
more easily regulated. The ships of neutrals could be
searched, and, if contraband articles were found on
board, a suitable penalty could be inflicted ; or their
22
338 OUTLINES OF INTERNATIONAL LAW.
introduction into the enemy's country could be pre-
vented, by maintaining opposite his coasts a naval force
of sufficient strength to make it difficult, or impossible,
for neutral ships to obtain access to his harbors.
When such regulation was first undertaken, the at-
tempt was made to forbid all traffic with an enemy.
This claim, however, was soon abandoned, and the
conveyance of contraband was regarded as a criminal
act, involving the persons engaged in it, as well as
their property, in the penalties imposed. In this form
the rule was recognized by Grotius. The criminal feat-
ure was soon abandoned, so far as it affected the per-
sonal rights of those concerned, and the penalties were
restricted to the contraband goods alone.
2. Power of a Belligerent over Neutral Commerce
in Time of War. The law of nations permits a bel-
ligerent to exercise a peculiar jurisdiction over neutral
commerce in time, of war. This jurisdiction is so ex-
tensive as to amount to an absolute prohibition of cer-
tain kinds of trade. It is limited, in its extent and op-
erations, only by the zeal and energy which belligerents
display in its exercise.
This jurisdiction extends
(.) To the prohibition of neutral trade with bellig-
erents in certain articles susceptible of military use.
The articles so forbidden to be transported are called
contraband of war.
(>.) To the prohibition of all trade with certain ports
or places, which are closed to such trade by an exer-
cise of military force known as an investment, siege, or
blockade.
(c.) To make these prohibitions effective, a belliger-
ent is given the right to stop, and search, all neutral mer-
CONTRABAND OF WAR. 339
chant vessels on the high seas, in his own territorial
waters, or those of his enemy, for the purpose of deter-
mining the nationality of ships and goods, and of as-
certaining whether they contain contraband of war.
This is called the Right of Search.
These rights pertain to belligerent states alone.
They come into existence at the outbreak of war, and
are terminated by the treaty of peace. None of them
exist, or may lawfully be exercised, in time of peace ;
and the enforcement of any one of them, during peace,
would be regarded as a just cause of war by the state
whose sovereign rights were injured by its exercise.
The Rules of Contraband Affect chiefly the Acts of
Individuals. The rules of International Law on the
subject of contraband trade are directed chiefly against
the acts of individuals. If a neutral state, in its cor-
porate capacity, were to engage in contraband trade, it
would be regarded as an act of hostility by the injured
state, and would result in a declaration of war. An
individual engaging in such trade, does so at the risk
of losing the articles of merchandise which constitute
his commercial venture. He does not involve his gov-
ernment, however, in the breach of neutrality of which
he is himself guilty. If the municipal law of his own
state forbids its subjects to take part in contraband
trade, he may be punished by that government for a
violation of its laws.
Character of Contraband Trade in Point of Legal-
ity. International Law declares the acts of transport-
ing contraband and breach of blockade to be unlawful,
and denounces the penalty of confiscation upon the
goods, and, in some cases, upon the ships engaged in
such illicit trade. These rules of International Law
OUTLINES OF INTERNATIONAL LAW.
are enforced by the belligerent Avho suffers by their
violation, and the authorized penalties are imposed by
his prize courts.
3. Difficulty of the Attempt to Frame Rules for
Determining what Articles are Contraband of War.
It is difficult to lay down a rule the application of
which shall, in every case, determine whether a par-
ticular article is, or is not, contraband of war. The
attempt has frequently been made, but none of the
rules suggested has, as yet, received that general sanc-
tion which is necessary to give it standing as a rule of
International Law. " Grotius, in considering this sub-
ject, makes a distinction between those things which
are useful only for purposes of war, those which are
not so, and those which are susceptible of indiscrimi-
nate use in war and peace. The first, he agrees with
all other text writers in prohibiting neutrals from car-
rying to the enemy, as well as in permitting the sec-
ond to be so carried ; the third class, such as money,
provisions, ships' and naval stores, he sometimes pro-
hibits and at others permits, according to the existing
circumstances of the war." l
Difficulty of Stating a Precise Rule. The question
as to what is and what is not contraband cannot, as
yet, be answered with precision. No complete list of
articles which are to be deemed contraband under all
1 Boyd's Wheaton, pp. 558, 559, citing Grotius; " De Jure Belli ct
Pac.," lib. iii., cap. i., v, 1, 2, 3. The views of Bynkershoek and Vat-
tel agree in substance with those of Grotius. The former, however,
shows an inclination to extend Grotius's rules in the interest of bel-
ligerents, while the latter contends for a rule somewhat more favor-
able to neutrals. See Vattel, bk. iii., chap, vii., 112, 113; Bynker
shock, "Quest. Jur. Pub.," lib. i., cap. 10.
CONTRABAND OF WAR.
circumstances has been drawn up, nor does it seem
likely that it ever will be. That which is contraband
under certain circumstances may not be so under oth-
ers. The main point, in case of an article of doubtful
use, is, whether it was intended for, or would probably
be applied to, military purposes. The release or con-
demnation of the goods is, in every case, determined
by the decision of this question.
Question Determined by Prize Courts. In England
and America the court before which the goods are
brought will inquire into all the circumstances of
the case; such as the destination of the ship, the
purpose to which the goods seem intended to be ap-
plied, the character of the war, and so on, and will
condemn or release them upon the evidence. 1 If, how-
ever, there are any treaty stipulations on the subject, or
if the state before whose court the goods are brought
has issued any definite list of contraband goods, the
decision will, of course, be regulated accordingly.
" The liability to capture" says Halleck, " can only be
determined by the rules of International Law, as inter-
preted and applied by the tribunals of the belligerent
state, to the operations of whose cruisers the neutral
merchant is exposed." "
field's Rule. Mr. Field, in his proposed Interna-
tional Code, holds that " private property of any per-
son whomsoever, and public property of a neutral
nation, are contraband of war, when consisting of arti-
1 Dana's Wheaton, note, p. 226; Calvo, vol. ii., 1114; Abdy's
Kent, p. 359.
2 Boyd's Wheaton, pp. 575, 576; Halleck, chap, xxiv., 19. See,
also, on page 576 of the former work, the lists of contraband as de
termined by the English prize courts.
342 OUTLINES OF INTERNATIONAL LAW.
cles manufactured for, and primarily used for, military
purposes in time of war, and actually destined for the
use of the hostile nation in war, but not otherwise." '
Opinion of the Supreme Court of the United States.
The most recent authoritative opinion upon the sub-
ject, and the one which more nearly expresses the ex-
isting rule than any other, is that laid down by the
Supreme Court of the United States in the case of the
Peterhoff. The decision of the court was that "the
classification of goods as contraband or not contra-
band has much perplexed text writers and jurists. A
strictly accurate and satisfactory classification is, per-
haps, impracticable ; but that which is best supported
by American and English decisions may be said to di-
vide all merchandise into three classes : (1.) Articles
manufactured and primarily or ordinarily used for
military purposes in time of war. (2.) Articles which
may be, and* are, used for purposes of war or peace,
according to circumstances. (3.) Articles exclusively
used for peaceful purposes. Merchandise of the first
class, destined to a belligerent country or places occu-
pied by the army or navy of a belligerent, is always
contraband ; merchandise of the second class is contra-
band only when destined to the military or naval use
of a belligerent ; while merchandise of the third class
is not contraband at all, though liable to seizure and
condemnation for violation of blockade or siege." 2
To these may be added the rule that no articles of
merchandise are contraband of war so long as they re-
main in neutral territory, or are found on the high
1 Field, "International Code," 859.
2 The Peterhoff, Wallace, vol. v., p. 58.
CONTRABAND OF WAR. 343
seas "with a bona fide neutral destination. They ac-
quire the character of contraband only when they are
found, without the territorial waters of a neutral state,
on board a ship which is destined to a hostile port.
Application of the Rules. In the application of
these rules, the first and third give rise to but little
difficulty. Such discussion as has been had, with re-
spect to the liability of merchandise to capture as con-
traband of war, has had to do chiefly with the second
class, with reference to which there is a wide differ-
ence of opinion. This is observable, not only in the
policy of states, but in the views of text writers.
Those states which, at different periods, have enjoyed
great maritime power, both in a commercial and a mil-
itary sense, have usually advocated an extension of the
list o^ contraband; while, on the other hand, those
which have never attained to any considerable degree
of maritime importance have opposed such an exten-
sion, and have contended for the greatest freedom of
neutral trade. Of the former class England is the
most conspicuous representative ; next in order follow
France and the United States. Holland, when an im-
portant maritime power, entertained a different view
from that advocated by her when her maritime impor-
tance had been largely diminished.
Again, articles which are in dispute are differently
regarded at different times, and under different cir-
cumstances of destination, as determined by the states
which are parties to a particular war. So, too, arti-
cles w^hich are undeniably contraband at a particular
epoch gradually lose that character ; on the other hand,
articles formerly innocent, with the lapse of time and
the march of improvement, acquire the character of
344 OUTLINES OF INTERNATIONAL LAW.
contraband. Parts of marine steam machinery, pre-
vious to 1830, would have escaped capture. Plates of
iron or steel, of suitable size for use as armor, would
have enjoyed a similar immunity. At present both
are everywhere regarded as contraband of war. How-
ever difficult it may be to prepare a list of contraband
articles at any particular epoch, it is certainly much
less difficult for a court to determine whether a cer-
tain article of captured merchandise is, or is not, con-
traband. In reaching such a determination the court
takes into account the circumstances of capture, the
necessities of the state to whose use it was destined, its
condition, origin, and ownership. With these data the
court is usually able to determine, with great accuracy,
whether a particular article is, or is not, contraband of
war. 1
1 The action of the court in the case of the Peterhoff may be cited
as an example. A portion of the cargo of the ship consisted of
stoutly-made shoes and cavalry boots. The ostensible destination
of the cargo was Matamoras, a Mexican port. These articles were
notoriously not worn or used, in Mexico, by any portion of the popu-
lation; they were worn in the United States, and were especially
needed for the equipment of the Confederate armies. Another por-
tion of the cargo was composed of heavy woollen blankets, not adapt-
ed to the Mexican market, and of a kind entirely different, in pat-
tern and weight, from those usually worn in Mexico. On the other
hand, they closely resembled those made and sold, for military
use, in the United States, and were adapted to the colder climate
of that country. The court, in both instances, properly inferred
that the goods were destined to the military service of the Confed-
eracy. In the cargo of the Springbok a large quantity of gray cloth
and metal buttons were found. The cloth was a heavy woollen ma-
terial, altogether uusuited to the Nassau market, or for use in the
manufacture of clothing in that climate. On the other hand, it was
of the same color and quality as that officially adopted for the use
of the Confederate armies. Some of the buttons bore as a device
CONTRABAND OF WAR. 345
Destination of Ships and Goods ; how Determined.
The destination of a vessel is determined from its pa-
pers. If the ultimate destination and all interme-
diate ports of call are neutral, the ship is said to have
a neutral destination. If the port of final destination,
or any intermediate port of call, be hostile, then her
destination is hostile. If the purpose of the master to
visit an intermediate hostile port be contingent only,
and if he has abandoned his purpose in the course of
the voyage, the burden of proof is with him to estab-
lish such abandonment of the hostile destination. In
this case he will have to overthrow the presumption,
as to destination, which is created by the ship's papers.
The destination of the goods is usually, but not in-
variably, determined from that of the ship. If the
destination of the ship be neutral, that of the goods is
neutral ; if it be hostile, that of the goods is hostile.
Until the American civil war the presumption by
which the destination of the goods was deduced from
that of the ship was generally regarded as conclusive.
During the course of that war, however, the Supreme
the letter C; others the letter A; others the letter I; still others the
letters C. S. N. These buttons were not usual articles of commerce
in Nassau, the ostensible destination of the ship. The Confederate
army regulations prescribed that such buttons should be worn by,
and should designate the uniforms of, its cavalry, artillery, and in-
fantry. Its navy regulations prescribed the use of buttons bearing
the letters C. S. N. Goods bearing the name of the same makers,
and in some cases of the same shippers, had been found and con-
demned in previous cargoes of contraband. These facts created a
presumption, against the articles, which the claimants did not attempt
to rebut by evidence of a legitimate neutral destination. ThePe-
terhoff, "Wallace, vol. v., p. 58; The Springbok, ibid., p. 1. See,
also, Daira's Wheaton, p. 632, note.
346 OUTLINES OF INTERNATIONAL LAW.
Court of the United States rendered several decisions,
the effect of which was to extend considerably the
rights of belligerents at the expense of those of neu-
trals. As the new rule is likely to receive considera-
ble support in future wars, it is important to under-
stand its relation to the old rule of International Law
upon the same subject. The rule laid down by the
court was that the destination of the goods, rather than
that of the ship, was to be inquired into by the court,
in determining the liability to capture. If the result
of such inquiry showed that the goods were destined
to the military use of a belligerent, they were held lia-
ble to condemnation, even though they were ostensi-
bly destined to a neutral port. The application of the
rule is illustrated by the cases of the Springbok and
Peterhoff.
C&se of the Springbok. The Springbok was a neu-
tral ship, of English ownership, which sailed from
London in December, 1862, having on board a cargo
made up in great part of contraband of war. The
destination of the vessel, as indicated by her custom-
house certificate, certificate of clearance, and manifest
of cargo was Nassau, N. P., a British, and therefore
neutral, port. On February 3, 1863, she was captured
by a public armed vessel of the United States, on the
high seas, about one hundred and fifty miles east of
her port of destination. She was conveyed to New
York as a prize, and ship and cargo were there con-
demned by the United States District Court, a tribu-
nal having original jurisdiction in the case. An ap-
peal was taken to the Supreme Court, where the decree
was reversed as to the ship, but affirmed as to the cargo.
The decision of the court with regard to the ship was,
CONTRABAND OF WAR. 34.7
that when " the papers of a vessel sailing under a char-
ter party are all genuine and regular, and show a voy-
age between ports neutral within the meaning of In-
ternational Law, and when the aspects of the case gen-
erally are, as respects the vessel, otherwise fair, the
vessel will not be condemned because the neutral port
to which it is sailing has been constantly and notori-
ously used as a port of call and transshipment by per-
sons engaged in the systematic violation of blockade,
and in the conveyance of contraband of war, and was
meant by the owners of the cargo carried on this ship
to be so used in regard to it." l The Springbok was
held to come Avithin the rule. " Her papers were reg-
ular, and they all showed that the voyage in w^hich
she was captured was from London to Nassau, both
neutral ports within the definition of neutrality fur-
nished by International Law. The papers, too, were
all genuine, and there was no concealment of any of
them, and no spoliation. Her owners were neutral,
and do not appear to have had any interest in the car-
go ; and there is no sufficient proof that they had any
knowledge of its alleged unlawful destination." 3
The case of the cargo was quite different. The cargo
of the ship consisted of over two thousand packages.
Of these the bills of lading disclosed the contents of
less than one third, and concealed the contents of over
two thirds, of the entire cargo. The manifest and
bills of lading named no consignee, but described the
cargo as deliverable to order. The real owners of the
cargo were found to be certain firms in London, all
of whom had been the owners of similar packages of
1 The Springbok, Wallace, vol. v., p. 1. * Ibid.
348 OUTLINES OF INTERNATIONAL LAW.
merchandise which had been captured on a previous
occasion, and condemned as contraband. 1 The court
inferred from these facts the intention of concealing
from the scrutiny of American cruisers the contraband
character of a considerable part of the cargo. The
motive of such concealment being "the apprehension
of the claimants that the disclosure of their names, as
owners, would lead to the seizure of the ship in order
to the condemnation of the cargo."
The concealments above mentioned were not of
themselves regarded by the court as- sufficient to war-
rant the condemnation of the cargo. " If the real in-
tention of the owners of the cargo was that the cargo
should be unloaded at Nassau, and incorporated by
real sale into the common stock of that island," the
cargo should have been " restored, notwithstanding the
misconduct of concealment. What, then, was the real
intention?" This was inferred by the court, m part
from the ship's papers, and in part from the character
of the cargo. The manifest and bills of lading showed
that the consignment was to order. This was regard-
ed by the court as a negation that any sale was made,
or intended to be made, at Nassau. The final destina-
tion of the cargo, therefore, was not Nassau, but some
ulterior port, and must be inferred from the character
of the cargo. A small part of this cargo consisted of
articles which were contraband by the narrowest defi-
nition of the term. A considerable part consisted of
articles useful and necessary in war such as army
cloth, blankets, boots and shoes and therefore con-
1 The Gertrude, " Blatchf ord's Prize Cases" (U. S. Dist. Court),
. 874; The Stephen Hart, ibid., p. 387.
CONTRABAND OF WAR. 349
traband within the construction of English and Amer-
ican prize courts. These being contraband, the resi-
due of the cargo, belonging to the same owners, was
included in the decree of condemnation. 1
Case of the Peterhoff. The case of the Peterhoff, in
some respects, resembles that of the Springbok. The
Peterhoff was a steamer which sailed from London
with proper documents and ship's papers, indicating
her destination to be Matamoras, Mexico. The Rio
Grande, for a portion of its course, separates the
territory of the United States from that of Mexico.
The city of Matamoras is situated on the lower waters
of the river, about forty miles from its mouth, and di-
rectly opposite the city of Brownsville, in the United
States, The Peterhoff never reached her destination,
but was" captured, near the Island of St. Thomas, by
the United States steamer Vanderbilt, on suspicion
that her destination was the blockaded coast of the
states in rebellion, and that her cargo consisted in part
of contraband of war. She was taken to ]S"ew York,
where ship and cargo were condemned as prize. An
appeal was taken to the Supreme Court by claimants
interested in the vessel and a portion of the cargo.
The court, in reaching a decision, found it necessary
to pass upon the question of the right of a belligerent
to blockade a boundary river, in order to determine
whether the ship was liable for breach of blockade or
for carrying contraband of war.
Upon this point the ruling was, that when a naviga-
ble river separates two sovereign states, neither bellig-
erent, in the exercise of his right of blockade, can in-
' The Springbok, Wallace, vol. v., p. 1.
350 OUTLINES OF INTERNATIONAL LAW.
terrupt commerce with the other state, if neutral, by
preventing access to any ports of such neutral state as
are situated upon the boundary river at any point of
its course. As the ~bona fide destination of the ship,
as indicated by its papers, was Matamoras, a neutral
port, it was therefore decided that the ship was not,
and, under the circumstances could not be, liable to
condemnation for breach of blockade.
As to the cargo, the decision was that the destina-
tion of such part of it as was contraband of war, ac-
cording to the rules already cited, 1 was not the neutral
port of Matamoras, and " that these articles, at least,
were destined for the use of the rebel forces then oc-
cupying Brownsville and other places in the vicinity.
Contraband merchandise is subject to a different rule
in respect to ulterior destination from that which ap-
plies*, to merchandise not contraband. The latter is
liable to capture only when a violation of blockade is
intended ; the former when destined to a hostile coun-
try, or to the actual military or naval use of the ene-
my, whether blockaded or not. The trade of neutrals
with belligerents, in articles not contraband, is abso-
lutely free, except interrupted by a blockade ; the con-
veyance by neutrals to belligerents of contraband arti-
cles is always unlawful, and such articles may always
be seized during transit by sea. Hence, while articles,
not contraband, might be sent to Matamoras and be-
yond to the rebel region, where the communication
was not interrupted by blockade, articles of a contra-
band character, destined in fact to a state in rebellion,
1 Lawrence's Wheaton, pp. 772-776, note; The Commercen, Whea-
ton, vol. i., p. 382; Dana's Wheaton, p. 629, note; Parsons, "Mari-
time Law," pp. 93, 94.
CONTRABAND OF WAR. 351
or for the use of the rebel military forces, were liable
to capture though primarily destined for Matamoras." '
The rule that the ownership of a portion of the contra-
band cargo rendered articles not contraband, but be-
longing to the same owners, liable to condemnation,
was enforced as in the case of the Springbok. 2
4. The Doctrine of Continuous Voyages. In both of
these cases the doctrine of continuous voyages, orig-
inated by the English prize courts at the beginning of
this century, was recognized by the court in reaching a
decree of condemnation. By this doctrine the ulti-
mate destination of a cargo is held to determine its
liability to capture. If such destination is a neutral
port, and if the cargo is intended to be sold there, and
taken up as a part of the general stock in trade, the
cargo is not liable to condemnation. If, however, a
neutral port is made a new base of operations, and the
goods are intended to be finally delivered at a block-
aded port ; or if they are contraband of war, and are
destined to the ultimate military use of a belligerent,
then the alleged neutral destination will not avail.
The principle of continuous voyages is thus seen to
have been extended by the Supreme Court in its appli-
cation to the cases of the Springbok and Peterhoff,
although the fundamental principle involved, as an-
nounced by Lord Stowell in his original decision, has
undergone no material change. 3 The later decision
1 Wallace, vol. v., p. 35.
s The English cases of the Stert, Robinson, "Admiralty Reports,"
vol. iv., p. 65, and the Jonge Pieter, ibid., vol. Hi., p. 297, were cited
by the court as precedents applicable to the case.
8 For a full account of the decision of Lord Stowell upon the
subject of continuous voyages, see the Polly, Robinson, "Admiralty
352 OUTLINES OF INTERNATIONAL LAW.
regards the goods if contraband, and destined to an
enemy's use, or to a blockaded port, as still liable to
capture, even Avhen they were to have been discharged
at a neutral port, with a view to reshipment to the
belligerent destination. 1
Difference between the Old and New Rules. The
rule thus laid down by the Supreme Court of the United
States is undoubtedly at variance with the provisions
of International Law on the same subject, as they were
accepted and understood at the outbreak of the civil
war. Neither has the new rule received that general
recognition which it must receive to entitle it to con-
sideration as a rule of International Law. The devel-
opment of steam navigation, however, has been such
as greatly to facilitate the operations of blockade-run-
ning and carrying of contraband. So important has
this* development been, that a belligerent would now
suffer great injury were he to adhere to the old rule
on the subject, which received international sanction
at a time when maritime commerce was carried on in
sailing vessels, and before the application of steam to
purposes of navigation had become an accepted fact.
Some modification of the old rule is, therefore, both
Reports," vol. ii., p. 369, and the William, ibid., vol. v., p. 395. See,
also, Phillimore, vol. iii., p. 394; and Boyd's Wheaton, pp. 589-592.
1 In the case of the Springbok the British government was ap-
plied to by the owners of the contraband cargo to demand restitu-
tion of the goods from the American government, or compensation
for their seizure. The case was referred to the law officers of the
crown, and their opinion was that the seizure was illegal. The case
was referred to a mixed commission, and the claim was rejected,
but no reason was given by the commission for its decision. See
Creasy, pp. 619, 620, for a full and able discussion of the subject.
See, also, Field's "International Code," 859.
CONTRABAND OF WAR. 353
just and necessary, in order to place a belligerent in as
good a situation as that which he formerly occupied.
What that modification is to be can only be deduced
from experience, of which a sufficient amount has not
yet been acquired to justify such a deduction, or to
warrant the statement of a modified rule. This much
only is clear. A powerful belligerent will not, in the
future, allow himself to be injured by articles of con-
traband which the enemy actually receives from ships
having an ostensibly neutral destination ; nor, on the
other hand, will a powerful neutral allow the property
of his subjects to be seized on the high seas when those
goods, although partaking of the character of contra-
band, have a lona fide neutral destination. In the
cases above cited the ultimate destination of the goods
was so clearly hostile as to make it difficult, if not im-
possible, for the British government to maintain the
position that the goods of its subjects had been seized
in the prosecution of an entirely innocent voyage, and
were so entitled to the protection which that govern-
ment invariably accords to its subjects when their
rights have been wrongfully invaded by a foreign
state.
5. Penalty for Contraband Trade. The conveyance
of contraband of war is an offence against the law pf
nations. Over this offence the prize courts of a bel-
ligerent are given jurisdiction, and, in the decision of
prize cases, these courts apply the rules, and impose
the penalties, which are sanctioned by International
Law.
The invariable penalty imposed for the carriage of
contraband is that of forfeiture. In ordinary cases
this penalty is applied to the contraband goods alone,
23
354: OUTLINES OF INTERNATIONAL LAW.
and to the freight due upon them to the neutral carrier.
The question as to whether it is to be extended to oth-
er parts of the cargo, or to the ship, is determined by
the knowledge and intention of their owners, as pre-
sumed from the circumstances of the case. The an-
cient penalty for engaging in contraband trade involved
the forfeiture of the ship and the non-contraband cargo.
This rule has been relaxed, in modern times, in cases
where such contraband articles make up a minor por-
tion of the cargo, thus creating a presumption of inno-
cence in favor of the carrier. In other cases the old
presumption remains, and the burden of proof lies upon
the owner of the ship to establish his innocence. Such
presumption exists, as to the ship
(#.) When the owner of the ship owns any part of
the contraband cargo. If a part owner of the vessel
be shown to have an interest in the contraband cargo
his share only is forfeited. 1
(b.) "When the greater part of the cargo is contra-
band. In this case the presumption is that the owner
of the ship knew of the use to which his property was
put, and consented to such illegal use. a
(c.) When deceit is attempted by the use of false
papers, or when a false destination is claimed. 3
(<#.) When contraband is carried in violation of treaty
stipulation. 4
The innocent cargo is exempt from forfeiture, unless
its ownership is t-he same as that of the whole or a
part of the contraband.
Duration of Penalty. The offence of carrying
contraband begins so soon as the ship passes into the
Boyd's Wheaton, p. 584. 2 Ibid. 3 Ibid.
CONTRABAND OF WAR. 355
high seas from the territorial waters of the neutral
state. It is complete, and the liability to penalty no
longer exists, when the articles have been delivered at
their hostile destination. A ship cannot be captured
on its return voyage, since there is no offence against
International Law in carrying a cargo of any charac-
ter from a belligerent to a neutral destination. 1
Release of Neutral Ship upon the Surrender of
Contraband Cargo. In a few instances neutral ships
have been released, and allowed to proceed to their
destination, on condition that the contraband articles
be surrendered to the captor. Although this practice
has been recognized in a limited number of treaties, it
is entirely opposed to the rule of law upon the subject,
and has never received, nor is it likely to receive, gen-
eral sanction. The surrendered articles must be car-
ried before a prize court in order to secure a decree of
condemnation, upon which alone a valid title can be
based. The court, in the absence of the ship's papers,
frequently finds itself unable to determine, from lack of
evidence, whether the articles are, or are not, contraband
of war ; and, in the absence of the owner, the master of
the ship has no legal power to surrender any portion
of his cargo, except in accordance with the la\vs of war.
1 It was held by Sir William Scott, in at least two cases, that the
duration of the penalty was prolonged to the end of the return voy-
age when false papers had been used to evade seizure on the outward
voyage. This view is properly questioned by Wheaton, on the ground
that there must be a delictum at the moment of seizure. To subject
the property to confiscation, while the offence no longer continues,
would be to extend it indefinitely, not only to the return voyage,
but to all future cargoes of the vessel, which would thus never be
purified from the contagion communicated by the contraband arti-
cles. Boyd's Wheaton, pp. 584, 585.
356 OUTLINES OF INTERNATIONAL LAW.
6. Neutral Conveyance of Enemy's Troops and De-
spatches. It has been seen that the conveyance of
contraband of war is an offence against the law of na-
tions. Over this oifence belligerents are given juris-
diction, and the penalties sanctioned are imposed by
the prize courts of the belligerent parties to the war.
A neutral individual who carries contraband to either
belligerent assists that belligerent to a greater or less
extent, depending upon the character and quantity of
the goods transported. Troops and despatches are,
therefore, the most noxious form of contraband of
war, because, in point of directness and importance,
the service rendered by the conveyance of either is
much greater than that afforded by the conveyance of
ordinary contraband. The assistance rendered to an
enemy by a single cargo of munitions of war, though
direct and material, is, at best, limited. The mischief
that may result from the carriage of a single despatch,
or general officer, may have a decisive effect upon the
issue of a war. The penalty for engaging in contra-
band trade usually extends to a forfeiture of the con-
traband articles. The question as to the ship and
non-contraband cargo is made to depend on the guilty
knowledge of their owners. If they are forfeited it is
because a presumption of such knowledge is created
by the fact of ownership. "When troops or despatches
are carried to a hostile destination the presumption of
guilt, created by such carriage, is so strong as to be re-
garded as conclusive; and the ship is invariably con-
demned as the instrument with which the offence
against International Law has been committed.
Definition of Troops and Despatches in this Connec-
tion. The term troops includes not only military per-
CONTRABAND OF WAR. 357
sons, but all individuals having an official character in
the service of a belligerent, whose assistance is mate-
rial in the prosecution of the war, or whose detention
is calculated to impair his military efficiency.
Despatches are official communications between offi-
cial persons, in the military or civil service of a state,
upon matters connected with the public business. All
other communications, of whatever character, are un-
official, and therefore not subject to classification as
despatches.
The Destination Important. In the conveyance of
troops and despatches the destination of the vessel is
of importance as creating a presumption of guilt or in-
nocence. If the destination is hostile, the guilt of the
carrier is presumed ; if such destination be neutral, the
contrary is the case, and the burden of proof lies on the
captor to" establish guilty knowledge. If the ports of
origin and destination are both hostile, an extreme case
of guilt exists ; if such ports are both neutral, it is dif-
ficult to see how guilty knowledge can be presumed on
the part of the neutral carrier. As in every other case
of maritime capture, questions as to the character of
particular despatches, and the consequent liability of
the carrier, are determined by the proper prize courts.
Cases of the Friendship and Greta. Several con-
demnations of vessels for carrying troops were made
by the English prize courts during the period between
1803 and 1815. A leading case was that of the Friend-
ship, a vessel hired to bring to France eighty-four ship-
wrecked officers and sailors. It was confiscated because
it appeared in the evidence that it was hired as a trans-
port, was not permitted to take cargo, and was being
used, as a transport, to convey these persons, as a part
358 OUTLINES OF INTERNATIONAL LAW.
of the French army, to a belligerent destination. In
another case a vessel sailed from Rotterdam to Lisbon,
where it was ostensibly chartered, by a Portuguese sub-
ject, to carry cargoes or passengers to Macao ; no cargo
was shipped, but, after some time spent in fitting it for
passengers with unusual care, three Dutch officers of
rank embarked in it, not for Macao, but for Batavia.
Lord Stowell, on the facts in the case, inferred that a
contract had been made with the Dutch government
before the vessel left Rotterdam, and condemned it. 1
The Greta was a neutral vessel, employed in carrying
certain shipwrecked Russian soldiers from a port of
Japan to a destination in Asiatic Russia. She was
captured by an English cruiser, and condemned. Had
she been captured in the act of conveying them from
the place of the shipwreck, to any destination, her act,
being one of humanity, would have been innocent. In
the particular voyage upon which she was engaged,
however, she was acting in the capacity of a transport.
Presumption in the Case of Hostile Despatches.
In the case of hostile despatches, the mere presence of
such documents on board suffices to create a presump-
tion of guilt on the part of the neutral carrier. So
severely is this rule applied, that a neutral may not
even plead compulsion as an excuse, it being held in
such a case that his remedy, in the event of being
compelled to render such service to a belligerent, is
through his own government in the diplomatic way.
Despatches of a Belligerent to its Ministers and Con-
suls in Neutral States. The despatches of a public
1 Hall, p. 594; The Friendship, Rohinson, "Admiralty Reports,"
vol. vi., p. 432; The Orozernbo, ibid., p. 433.
CONTRABAND OF WAR. 359
minister or consul, representing a belligerent in a neu-
tral state, are an exception to this rule. " They are
despatches from persons who are, in a peculiar manner,
the favorite object of the protection of the law of na-
tions, residing in a neutral country for the purpose of
preserving the relations of amity between that state
and their own government. On this ground a very
material distinction arises with respect to the right of
furnishing the conveyance. The neutral country has
a right to preserve its relations with the enemy, and
you are not at liberty to conclude that any communi-
cation between them can partake, in any degree, of the
nature of hostility against you." l
Conveyance of Mails in the Ordinary Course of
Business. The question of conveying hostile despatch-
es must not be confused with the carriage of mails by
a neutral, in accordance with contracts or agreements,
and in the way of ordinary business. Such contracts
not only have the sanction of municipal law, but are
not infrequently made the subjects of treaty stipula-
tion. It is not easy to see how the master of a vessel
can acquire any duties or responsibilities in connection
with them, save for their speedy and safe deli very. A
neutral master who aids a belligerent by carrying his
despatches, with full knowledge of their contents, or
under circumstances which create a presumption of
such knowledge on his part, is justly held to the fullest
responsibility for his act. The conveyance of mails,
however, in the usual course of business, can give rise
to no such presumption. The packages are delivered
1 The Caroline, Kobinson, "Admiralty Reports," vol. vi., p. 461
cited by Wheat on, p. 581.
360 OUTLINES OF INTERNATIONAL LAW.
to him either locked or sealed. He has, and can have,
no knowledge of their contents, much less of the char-
acter of the letters enclosed in them. Responsibility
for them on the part of the carrier, therefore, cannot
exist,' for no knowledge or intention can be presumed.
The modern tendency is to facilitate mail communica-
tion in every way possible, to remove every obstacle
to their prompt and safe delivery, and to guarantee,
beyond question, the sacredness of private correspond-
ence. 1
Case of the Trent. The Trent was one of a line of
mail steamers employed in general mail and trans-
portation service between Havana and London. On
November Y, 1861, she sailed from Havana, having on
board, among other passengers, four persons, Messrs.
Mason and Slidell, and their secretaries, who were en
route to Europe, where they were to be employed as
diplomatic agents of the Confederate States. On No-
vember 8 the Trent was stopped on the high seas by
the San Jacinto, a public armed vessel of the United
States, whose commander, Captain Wilkes, sent on
board a search party composed of an officer and a de-
tachment of marines. The two envoys, with their
secretaries, were seized by the search party, taken on
board the San Jacinto, and conveyed to New York.
The Trent was then released and alloAved to proceed
on her way.
So soon as the facts were brought to the attention
of the British government, a demand was made upon
1 The rule of International Law, however, still authorizes the ex-
amination of mails found on board vessels which have been regu-
larly captured ; Field, "International Code," 862 ; Lushington,
"Naval Prize Law," introduction, p. xiL
CONTRABAND OF WAR.
the United States for the restoration of the arrested
persons. Their diplomatic character was not drawn
in question, their surrender being demanded on the
ground that they had been forcibly taken from a neu-
tral vessel on the high seas, and in the prosecution of
a voyage from one neutral port to another. They
were surrendered by the United States upon the ground
of the irregularity of their seizure.
Conclusions. The case of the Trent illustrates cer-
tain principles of the law of maritime capture.
(.) The Trent, being a neutral vessel, was liable to
search upon the high seas, by any properly documented
armed vessel in the service of a belligerent power.
(J.) If the commander of the searching vessel had
found enemy despatches on board, or had reason to
believe that such despatches were being carried, it was
his duty" to seize the vessel and send her to a port of
the United States, with a view to a judicial determina-
tion of the question involved.
(c.) In the exercise of his belligerent right it was his
duty to capture the vessel ; or release her, after having
executed the right of search. No intermediate course
was possible. His action, therefore, in seizing certain
persons, under any pretext, was without warrant of law.
(Y7.) The destination of the Trent w T as neutral, a fact
which should have created a strong presumption of
innocence. The fact that her port of origin was also
neutral should have made the presumption conclusive
as to innocence. 1
1 For able discussions of this case, see Dana's Wheaton, p. 648,
note; Bernard, "Neutrality of Great Britain," pp. 157, 225; Nys,
"La Guerre Maritime," p. 46. The case of Henry Laurens is, in
many respects, the same as that of the Trent. Mr. Laurens was
362 OUTLINES OF INTERNATIONAL LAW.
7. Occasional Contraband. During the disturbed
period intervening between the outbreak of the French
Revolution in 1789, and the Treaty of Yienna in 1815,
the old usages of International Law were subjected to
a severe and constant strain. This was due, in part, to
the frequency and magnitude of the wars that were
carried on, in which, at times, nearly all of the Euro-
pean states were participants; and, in part, to the
great disparity that existed in the relative naval and
military power of the principal belligerents. During
the greater part of this period the military supremacy
of France was successfully maintained against every
effort to overthrow it by operations on land ; on the
other hand, the supremacy of England at sea was so
firmly established as to secure even more general rec-
ognition. As these powers were generally opposed to
each other, it is not remarkable that they should have
attempted to interpret the rules of w r ar, each in a sense
favorable to its own interests; and, as the one was
strong where the other was weak, neither was able to
sent, in 1780, upon a mission to Holland, with the authority of Con-
gress to secure the recognition of the independence of the colonies,
and to obtain a loan of money. He left Charleston in 1780, and
reached Martinique, in the West Indies, in safety. From there he
embarked in a Dutch packet, the Mercury, for Holland. He was
thus on board a neutral vessel sailing between neutral ports. "When
three days out the Mercury was overhauled by the British ship
Vestal. Mr. Laurens and his secretary were forcibly removed, their
papers were seized, and they were conveyed as prisoners to St.
Johns, Newfoundland, where they were committed, under a charge
of high-treason, to the Tower of London. After the surrender at
Yorktown their status was changed to that of prisoners of war. and
Mr. Laurens was eventually exchanged for Lord Cornwallis. Sparks,
"Diplomatic Correspondence," vol. ii., p. 461; Upton, "Law of Na-
tions Affecting Commerce during War," pp. 360, 361.
CONTRABAND OF WAR.
interpose an effectual check upon the pretensions of
the other. The result was that the rules of capture,
on land and sea, underwent a considerable modification
in the interest of belligerents, and to the prejudice of
the rights of neutrals, as those rights were then under-
stood. This influence upon the law of maritime capt-
ure was the more powerful from the fact that the
northern states of Europe, and, to a certain extent, the
United States as well, entered into general commerce
largely as producers of raw materials, which were con-
sumed by the principal belligerents, and so were obliged
to find a market in belligerent territory. Thus, while
these states were generally neutral, they were not
strong enough at sea, even when acting in concert, to
assert effectively their views of neutrality, or even to
successfully maintain their neutral rights.
Under these circumstances, not only was neutral
commerce likely to suffer from any extension of the
definition of contraband, but the commercial prosper-
ity of neutral states was made to depend, in no small
degree, upon that definition being closely restricted in
its application to neutral property. Such an extension
was effected by the application of the doctrine of occa-
sional contraband, by the English prize courts, to car-
goes of neutral merchandise. According to this rule
articles were condemned which had previously either
been exempt from seizure, or, if regarded as contra-
band, had acquired that character only in exceptional
cases, where the circumstances pointed clearly to an
undoubtedly hostile destination. The articles so con-
demned were those usually classified as naval stores
and provisions ; and neutral states resisted the applica-
tion of the new rule, partly because of the extreme
364: OUTLINES OF INTERNATIONAL LAW.
hardship of the case, and partly because it was not,
and had never been, generally recognized as a rule of
International Law.
The English prize courts admitted the force of the
objection, and the irregularity of the practice, by a
somewhat less rigorous application of the new rule,
and certain mitigating circumstances were recognized
as creating presumptions in favor of innocence. In
their application of the modified rule it was held that
if the goods were produce of a neutral state, and were
shipped, as raw materials, to strictly commercial ports,
these facts were allowed to weigh against condemna-
tion, and in favor of restoration.
The Rule of Pre-emption. At a later period the orig-
inal doctrine was still further modified by the adoption
of the rule of pre-emption, by which the prize courts,
in some cases, decreed the purchase of the cargo at its
value at the port of origin, with a fair mercantile
profit, usually ten per cent., instead of condemning it
as contraband of war. The rule, as modified, continued
to be enforced until the close of the period of Napo-
leonic wars. Their justice was not discussed at the
Congress of Vienna, and the Treaty of Vienna con-
tained no provisions upon the subject of maritime
capture, or contraband of war. They never received
such general sanction as to entitle them to be accepted
as rules of International Law. On the other hand,
they were objected to from the first, and so seriously
as to lead to the formation of alliances to resist their
application. They are no longer seriously maintained
as rules of international obligation ; and it may safely
be said that no modern state would permit the proper-
ty of its subjects to be confiscated by the operation of
CONTRABAND OF WAR. 355
rules the justice of which it did not recognize, or by
the exercise of rights which were not sanctioned by
International Law.
References. For further information upon this subject the stu-
dent is referred to Vattel, book iii., chap, vii., 112, 113; Azuni,
vol. ii., chap, ii., pp. 144-157 ; Hall, part iv., chaps, v., vi. ; Wheaton,
Boyd's edition, 476-508 ; Halleck, chap. xxvi. ; Manning, book
v. s chaps, vii., viii. ; Phillimore, vol. iii., pp. 387-472; Wildman,
vol. ii., pp. 210-245 ; Dahlgren, pp. 65-100 ; Woolsey, 193-199 ;
Nys, "La Guerre Maritime," chap, iii.; Glass, "Marine Interna-
tional Law," pp. 464-508 ; G. F. De Martens, vol. ii., 314-319 ;
Wheaton, "History of the Law of Nations," pp. 115, 134, and 313-
401 ; Kliibcr, 288-292 ; Heffter, pp. 296, 304 ; and Hautefeuille,
vol. ii., pp. 69-189. See also the notes to the article "Contra-
band," in Dana's and Lawrence's editions of Wheaton.
CHAPTEE XIII.
BLOCKADE.
1. THE most effective restraint which, the law of na-
tions permits a belligerent to impose upon neutral
commerce, is that involved in the exercise of the right
of blockade. The rules of maritime capture permit
him to seize upon the high seas certain contraband ar-
ticles, which are destined to the enemy's use, or are
calculated to aid that enemy in his military operations.
But non-contraband articles are exempt from seizure,
even though they have a belligerent destination, and
the ship incurs no liability whatever. By the estab-
lishment of a blockade, however, he may not only pre-
vent the introduction of contraband articles, but may
absolutely prohibit access to his enemy's coast, and so,
for the time, interrupt all commercial intercourse with
the outside world.
Definition of a Blockade. The interruption or sus-
pension of neutral commerce which results from the
forcible closing of a belligerent's ports or harbors is
called a blockade.
What Places may be Blockaded. A belligerent, in
the exercise of this right, may choose any port or har-
bor of his enemy, any portion of his coast line, or any
entrance to a river, gulf, or bay, situated entirely with-
in the territorial limits of a hostile state. He may not,
however, by the establishment of a blockade, deny ac-
cess to a river, or other navigable water boundary, be-
BLOCKADE. 367
tween the territory of his enemy and that of a neutral.
He may prevent access to the blockaded coast by means
of ships of war or by batteries on land, or, if the cir-
cumstances be favorable, both measures may be resort-
ed to: He may, by an investment, blockade a fortified
place on land ; as an incident of siege operations, or
with a view to its reduction by cutting off its supplies
of food or water. The right of a belligerent to block-
ade an enemy's port arises from his right to besiege it.
The right is the same in both cases ; the two opera-
tions differ in purpose only ; in the one case the reduc-
tion of the place is the object aimed at ; in the other
the interruption of commercial intercourse.
What is a Valid Blockade f At one time consider-
able doubt existed as to the manner in which an ene-
my's ports should be closed, in order to constitute a
blockade" which should be valid at International Law.
This was set at rest by the fourth article of the Decla-
ration of Paris, which provides that " a blockade, to be
binding, must be effective." To this declaration nearly
all the civilized states of the world were signatory par-
ties, and, as the United States has always maintained
the principle announced in the declaration, that rule
may now be accepted as the existing rule of Interna-
tional Law upon the subject.
How Established and Notified. As an attempt to
enter a blockaded port is a flagrant violation of Inter-
national Law, involving both ship and cargo in the se-
verest penalties, it is important that official informa-
tion of its existence should be conveyed to neutrals, in
order that they may know when intercourse with the
place becomes illegal, and their liability to capture be-
gins. This is important because none but effective
368 OUTLINES OF INTERNATIONAL LAW.
blockades are recognized as lawful, and, until a de facto
blockade is established, neutrals are under no obliga-
tion to relinquish their commercial intercourse with an
enemy's port. In other words, a neutral vessel incurs
no penalty by entering a port which is not actually
blockaded by the ships or batteries of a belligerent.
This notification is given '
(a.) By proclamation, announcing the date upon
which a blockade will be established at a particular
port. If a force, adequate to the maintenance of the
blockade, be not stationed opposite the blockaded port
on the date mentioned in the proclamation, a neutral
vessel incurs no penalty by entering or leaving the
port. This is the practice of England and the United
States.
(&.) By Notification, or Endorsement. This is, in
substance, a warning given to neutral ships which are
about to enter a blockaded port. The notification is
given by ships of the blockading squadron, and is, or
should be, endorsed on the ship's papers of the vessel
notified, or warned away. An attempt to enter after
such notification constitutes a breach of blockade, and
renders the vessel liable to seizure and condemnation.
(c.) By Proclamation and Notification. This is a
combination of the preceding methods. A proclama-
tion is first issued, fixing the date upon which the block-
ade will be established. A neutral vessel approaching
the port after that date is warned off by the blockad-
ing squadron, and is only regarded as liable to capture
if, after such warning, an attempt be made to enter.
This rule is advocated by France, and was outlined by
1 Dahlgren, "International Law," pp. 26, 61.
BLOCKADE. 359
the President of the United States, in his proclamation
of April 19, 1861. The prize courts of the United
States have ruled that the second notification is not
legally necessary.
It is thus seen that a mere notification, by proclama-
tion or otherwise, not accompanied by the presence of
a squadron, or by the establishment of batteries at the
blockaded port, does not constitute a valid blockade at
International Law. On the other hand, if a de facto
blockade be established by a belligerent at an enemy's
port, it must be respected by neutrals as having the
sanction of International Law. Neutral vessels at-
tempting to enter, or desiring, in good faith, to ascer-
tain whether such a blockade exists, are entitled to
a notification or warning. An attempt to enter by
night, or by the use of force or deception ; or a refusal
to stop, or to observe the signals and warning guns of
the blockading squadron, renders the vessel liable to
capture ; the presumption being that a breach of block-
ade is intended. By far the greater number of at-
tempts to break blockade are made in this way. 1
The presence of a blockading squadron makes either
ingress or egress unlawful. Vessels in port at the date
when the blockade begins are permitted to leave, with
whatever cargo they may have on board at that time.
In strictness, they may not complete their lading, after
the blockade has been formally established, and they
have been held liable to capture for so doing. As the
object of a simple blockade is the interruption of com-
mercial intercourse only, the public armed vessels of
neutral powers are usually permitted to enter and leave
1 Dahlgren, p. 51
24
370 OUTLINES OF INTERNATIONAL LAW.
a blockaded port. Their visit is for a public purpose ;
they do not carry in or bring out merchandise, and so
cannot interfere with the purpose for which the block-
ade was established. Moreover, a refusal to permit
them to enter may inflict unnecessary hardship upon
a neutral government, or its subjects, without, in any
way, contributing to the purpose for which the war
was undertaken. 1
2. Penalty for Breach of Blockade. The penalty
for breach of blockade consists in the forfeiture of the
ship and cargo. As the offence consists in carrying on
commercial intercourse with a blockaded port, the for-
feiture includes everything Avhich is engaged in the
illegal venture. "If their owners are different, the
vessel may be condemned irrespectively of the latter,
which is not confiscated when the person to whom it
belongs is ignorant at the time of shipment that the
port of destination is blockaded, or if the master of
the vessel deviates to a blockaded harbor. If, how-
ever, such deviation takes place to a port the blockade
of which was known before the ship sailed, the act is
supposed to be in the service of the cargo, and the
complicity of the owner is assumed." a
Cases of Innocent Entrance to Blockaded Ports.
Hall mentions a few instances in which merchant ves-
sels may pass into, or out of, a blockaded port without
breach of blockade.
(a.) When a maritime blockade does not form part
: Hall, " International Law," p. 627; the Adonis, Robertson, "Ad-
miralty Reports," vol. v., p. 258; the Mariana Flora, Wheaton, vol.
vii., p. 59; the Alexander, Robertson, "Admiralty Reports," vol.
iv., p. 93.
8 Dahlgren, pp. 54-61; Hall, p. 628.
BLOCKADE. 371
of a combined operation by sea and land, internal
means of transport by canals, which enable a ship to
gain the open sea at a point which is not blockaded,
may be legitimately used. The blockade is limited in
its effect by its own physical imperfection. Thus, dur-
ing a blockade of Holland, a vessel and cargo sent to
Ernbden, which was in neutral territory, and issuing
from that port, was not condemned. 1
(J.) If a vessel is driven into a blockaded port by
such distress of weather, or want of provisions, or wa-
ter, as to render entrance an unavoidable necessity, she
may issue again, provided her cargo remains intact. 3
And a ship which has been allowed by a blockading
force to enter, within its sight, is justified in assuming
a like permission to come out ; but the privilege is not
extended to cargo taken on board in the blockaded
port. 3
Duration of the Penalty. The penalty begins when
a vessel clears from a neutral port with a hostile desti-
nation against which a blockade has been regularly
established, and of the existence of which the neutral
has, or is presumed to have, sufficient knowledge. An
official proclamation of a blockade, made by a bellig-
erent and communicated to neutral powers, would con-
stitute such a presumption of knowledge. If, on the
other hand, the blockade existed without proclama-
tion, the presumption would be in favor of the neutral
vessel, and it would be entitled to a warning in ap-
proaching the blockaded port. 4
1 The Stert, Robertson, "Admiralty Reports," vol. iv., p. 65.
2 The Hurtige, Hane, ibid., vol. iii., p. 326.
3 Ibid., vol. iii., p. 160; Hall, "International Law," p. 628.
4 Dahlgren, pp. 43-54.
372 OUTLINES OF INTERNATIONAL LAW.
The former rule was that, if the distance between
the ports of origin and destination was so great as to
require a considerable time in the prosecution of the
voyage, a neutral was entitled to the presumption that
the blockade had been raised during the continuance
of his voyage, and so was entitled to a warning if the
blockade existed at the time of his arrival at the port
of destination. The introduction of steam and the tel-
egraph, however, have made it practically impossible
for such a state of affairs to exist at the present time.
Indeed, as blockade running is now carried on in swift
steamers, specially constructed for the purpose, no de-
fence is usually attempted in the case of a vessel capt-
ured in the act.
Breach of Blockade by Egress. When the offence
is one of egress the penalty continues until the vessel
reaches the territorial waters of a neutral state. The
liability to capture also ceases when the blockade is
raised during the return voyage, since the offence ex-
ists only so long as the blockade exists. 1
3. Termination of Blockade. A blockade ceases
when it is discontinued by the belligerent who estab-
lishes it, or is raised by an exercise of force on the part
of the belligerent against whom it is declared. In the
latter case the right of intercourse with the port is
revived in favor of neutrals, and continues to exist
until the blockade is formally and effectively re-estab-
lished.
If the vessels of a blockading squadron are dis-
persed by a storm, the binding character of the block-
ade undergoes no change. The vessels of the squad-
1 Dahlgren, p. 54.
BLOCKADE. 373
ron return to their stations, the blockade is resumed
without notice, and neutral vessels approach at their
peril.
4. Pacific Blockade. The right to establish what
is called a pacific blockade has been asserted, on several
occasions, since the beginning of this century. It has
never been regarded as a war measure ; nor does it re-
semble, except in name, the belligerent right of block-
ade which is sanctioned by International Law. Pacific
blockades have always been made the subject of protest
by neutrals, as unduly interfering with neutral trade.
That such an operation is not a war measure, is shown
by the action of prize courts in " refusing to condemn
as prize because war did not exist." ! It must, there-
fore, be regarded as a measure falling short of war,
and must be justified, in any particular case, by the
injury suffered by the state which resorts to it as a
measure of obtaining redress. The first instance of
such a blockade was that declared by England, Eussia,
and France against the Greek ports of Turkey, in
1827. Others were declared by England and France
against the Argentine Kepublic, in 1838, and by France
against Mexico, in 1837. The former of these was
maintained for ten years, the latter for less than two,
terminating with the capture of the Castle of San Juan
de Ulloa, in 1838.
References. For a discussion of this subject, see Hall, chap,
viii. ; Boyd's Wheaton, 509-523 ; Halleck, vol. ii., chap. xxv. ;
Manning, bk. v., chap. ix. ; Wildman, vol. ii., pp. 178-210; Dahl-
gren, pp. 25-65 and 129-142; Woolsey, 202-207; Nys, "La
Guerre Maritime," chap. iv. ; Glass, "Marine International Law,"
1 Dahlgren, "International Law," p. 27.
374 OUTLINES OF INTERNATIONAL LAW.
pp. 423-462 ; G. F. De Martens, vol. ii., 320 ; Kliiber, 297, 298 ;
Heffter, pp. 289-294 ; Hautefeuille, " Droits des Nations Neutres,"
vol. ii., pp. 189-272 ; Ortolan, " Diplomatie de la Her," and Whea-
ton's " History," etc., pp. 137-144. See, also, the valuable notes
on this subject, under the article "Blockade," in Dana's and Law-
rence's editions of Wheaton.
CHAPTEE XIY.
THE RIGHT OF SEARCH.
1. THE belligerent rights which have already been
discussed of capturing enemy property at sea, of
seizing contraband of war, and of blockading the
coasts and harbors of an enemy could none of them
be made effective were not belligerents also accorded
the right to stop and search all neutral merchant ves-
sels on the high seas, for the purpose of ascertaining
their nationality and destination, the character and
ownership of their cargoes, and to effect their capture,
should the result of such examination show a liability
to capture to exist.
2. Definition of the Right ; when and where Exer-
cised. The right to stop and examine neutral vessels
on the high seas is called the belligerent right of search.
It comes into existence at the outbreak of war, and is
terminated by the treaty of peace. Neutral merchant
vessels, of whatsoever character, are at all times sub-
ject to its exercise, and must submit to search when
required to do so by a properly documented armed
vessel of either belligerent. If they refuse, or resist,
they are subject to seizure and condemnation. If the
right be exercised by a belligerent in a manner not
warranted by the law of nations, or in violation of the
terms of a treaty, the remedy must be sought through
the neutral government under whose flag the ship sails.
376 OUTLINES OF INTERNATIONAL LAW.
As to place, the right of search may be exercised wher-
ever a capture may lawfully be made, i. e., on the high
seas, or within the territorial waters of either belliger-
ent, but never in neutral waters.
Manner in which the Right is Exercised. The man-
ner in which the right of search is to be exercised is
determined by the usage of nations, except in those
cases in which it has been made the subject of treaty
stipulation. Many such treaties are in existence, and
they specify, in considerable detail, the manner in
which the search shall be conducted by war ships car-
rying the flags of the signatory powers. The duty of
submitting is only incumbent upon neutral merchant
vessels. Public armed vessels are not subject to visita-
tion, either in time of peace or war, and the merchant
vessels of a belligerent are justified in resorting to
any measures, either of flight, resistance, or deception,
which are calculated to enable them to escape search
and inevitable capture. The right may be exercised
by the regularly commissioned ships of war of a bel-
ligerent, or by duly authorized privateers in the service
of those states which still retain the right to use that
species of naval force in time of war.
Under ordinary circumstances, a man-of-war, in ex-
ecuting the right of search, hoists its national color,
and fires an unshotted gun, as a signal to heave to.
This is called the coup cP assurance, or affirming gun ;
and it is the duty of the neutral ship, on receiving this
signal, to heave to at once, and hoist her proper na-
tional flag. Should the signal not be obeyed, and
should the failure to obey indicate an intention to re-
sist search, the belligerent cruiser is justified in resort-
ing to such measures of force as will compel obedience
THE EIGHT OF SEARCH. 377
to its summons. An attempt at flight, unaccompanied
by resistance, has been held not to involve the ship
making it in the penalty for resisting search.
The distance at -which the searching vessel shall re-
main is determined by the judgment of her command-
ing officer, based upon the circumstances of wind and
tide, upon the character of the vessel to be searched,
and the necessity of remaining within easy support-
ing distance of the boat's crew by whom the search is
carried on. The distance at which a man-of-war shall
remain, when not regulated by treaty, is now a matter
of br.t little importance. It was not so, however, in
former times, when the right of search was executed
by privateers, whose methods of search and capture
were not above suspicion, and when piracy was a crime
of much more frequent occurrence than at present. 1
Duty of Boarding Party. An officer is sent on
board to conduct the search. He is accompanied by
a boat's crew, and by one or two persons to assist him
in the performance of his duty. The purpose of the
search may be
(a.) To ascertain from the ship's papers the nation-
ality and destination of the vessel.
(.) To ascertain from the same source the character
and destination of the cargo.
(<?.) When the papers do not contain satisfactory
information as to the character and destination of the
ship and cargo, to ascertain those facts by actual in-
spection. 2
1 The limitation as to the strength of the search party can be traced
to a similar origin, and, like the former, is now less strongly insist-
ed upon than formerly.
'- Dahigren, "International Law," p. 100.
378 OUTLINES OF INTERNATIONAL LAW.
If the ship's papers are in regular form, and show a
lona fide neutral origin and destination of ship and
cargo, the fact of the search having been made is noted
upon them by endorsement, the search party retires,
and the vessel is allowed to proceed on its voyage.
If the papers indicate a hostile destination, the man-
ifests, invoices, and bills of lading are examined, to as-
certain whether there are contraband articles on board.
If such be found, or if the vessel be destined to a block
aded port, the ship is declared a prize, her papers are
sealed, and she is sent into port under a prize master
for adjudication. A similar course is pursued, if there
is sufficient ground for believing that her papers are
false ; if any of them are cojicealed, or have been
destroyed, with a view to evade examination, or if
spoliation has been practised.
A practice has obtained to some extent of releasing
a neutral ship, and allowing it to continue its voyage
on condition that the contraband part of the cargo be
surrendered. This method of procedure is irregular,
without warrant of law, and is likely to lead to serious
complications. The captor, by assuming some of its
functions, greatly embarrasses the proper prize court in
its action upon the captured property. The ship's pa-
pers, which, in most cases, constitute all the evidence
upon which the court bases its decree, remain with the
neutral vessel, and the court is obliged to proceed in
the case without sufficient information. The master,
under his general authority as such, cannot effect a
legal surrender of a portion of his cargo in such a way
as to bind the owners. His action, therefore, in a
doubtful case, leaves to the owners the right of de-
manding, through their government, the restoration
THE RIGHT OF SEARCH. 379
of the surrendered cargo. For these reasons the prac-
tice should not be resorted to unless authorized by
treaty, or unless the owner, either personally or by
his duly authorized representative, gives a legal con-
sent to the proposed surrender.
3. The Eight of Visitation. The belligerent right
of search has never been seriously questioned, and is
accepted by all nations as a fact inseparably connected
with the existence of war. A right somewhat resem-
bling it, called the right of visitation, has been asserted
to exist in time of peace, but has never received univer-
sal sanction, and is now generally abandoned, save in
a few cases, where it maintains a lingering existence
by treaty. In the long controversy which was carried
on as to the assumed legality of this right, during the
early part of the present century, England and the
United" States were the principal contestants.
It was maintained, on the part of the British govern-
ment, that the rights of search and visitation were en-
tirely distinct from each other, having a different origin
and purpose. The right of search was peculiar to a
state of war. The right of visitation existed in peace,
and consisted in such an examination of merchant ves-
sels, on the high seas, as was necessary to determine
their nationality, the sufficiency and regularity of their
papers, and the legality of the undertaking in which
they were engaged.
On the part of the United States, it was contested
that the right of search was an incident of belligerency ;
that it existed only during the continuance of war, and
not only did not exist in time of peace, but an attempt
to exercise it was an invasion of sovereignty which,
if not disclaimed, would constitute a just cause for war.
380 OUTLINES OF INTERNATIONAL LAW.
The controversy was brought to an end, in 1858, by
a formal renunciation, on the part of the British gov-
ernment, of the right of visitation in time of peace,
except in cases where it was authorized by treaty stip
ulations. Of the justice and expediency of this aban-
donment there can be little question. The crimes of
piracy and the slave-trade, the prevalence of which
furnished the only reason for its existence, have prac-
tically disappeared. Its continued exercise, therefore,
is unnecessary, giving rise to constant complaint and
frequent international misunderstanding ; nor can any
good purpose be accomplished by it which could not
be attained by the use of other and less questionable
means. It lies within the power of every maritime
state to establish and maintain such constant police
supervision over its merchant marine as will prevent
its register from being improperly used, and its flag from
covering transactions which are not authorized by its
municipal laws, or sanctioned by the law of nations. 1
Impressment of Seamen. During the naval wars
succeeding the French Revolution the British govern-
ment, in exercising the right of search, made a prac-
tice of extracting certain persons from neutral vessels,
claiming that they were British subjects, and so liable
to impressment into its naval service. 2 The exercise
of this right, which never received the sanction of
1 Halleck, vol. ii., pp. 268-283.
2 The practice of impressing seamen was not restricted to Ameri-
can merchant vessels alone, but was exercised on public vessels as
well. In 1798 the British war ship Carnatic, seventy-four guns,
boarded an American war vessel off Havana. See, also, the case of
the President, Halleck, vol. ii., p. 303, note; Brenton, "Naval History
of Great Britain," pp. 200-203.
THE RIGHT OF SEARCH. 33!
International Law, bore with peculiar hardship upon
vessels sailing under the American flag ; and manned
largely by persons of the same race, and speaking the
same language, as those by whom the search was con-
ducted, and upon whose decision, in the matter of na-
tionality, the question of seizure largely depended.
On the part of Great Britain, it was alleged that an
important naval war was being carried on, 1 of the jus-
tice of which there could be no question, and whose
ultimate success involved the maintenance of enormous
armaments at sea. To maintain its position, the Brit-
ish government had been obliged to impose heavy bur-
dens upon the property and personal services of its
subjects, 2 many of whom had attempted to evade their
obligation by taking service in the merchant marine of
neutral powers. The continued exercise of this right,
in the'face of repeated protests, led to the war of 1812,
between England and the United States ; which was
terminated, however, without a definite settlement of
this important question. The controversy was revived
at a later period, and was exhaustively discussed by
representatives of both governments in a long and
ably conducted diplomatic correspondence. It was
terminated, so far as the American government was
concerned, by an announcement of policy contained in
a letter of Mr. Webster to Lord Ashburton, bearing
date of August 8, 1842. " The American government,"
1 It has been estimated that at one time over seventy thousand
British subjects were employed in the naval and merchant services
of foreign powers. Ashton, "Old Times."
3 Article 45 of the "British Navy Regulations" of 1787 required
commanders of English men-of-war to demand English seamen out
of foreign ships wherever met with. Halleck, vol. ii., p. 302, note.
382 OUTLINES OF INTERNATIONAL LAW.
says Mr. Webster, " is prepared to say that the prac-
tice of impressing seamen from American vessels can-
not hereafter be allowed to take place. That practice
is founded on principles which it does not recognize,
and is invariably attended by consequences so unjust,
so injurious, and of such formidable magnitude, as
cannot be submitted to. In the early disputes be-
tween the two governments on this so long contested
topic, the distinguished person to whose hands were
first committed the seals of this department declared
that the simplest rule will be, that the vessel, being
American, shall be evidence that the seamen on board
are such. Fifty years' experience, the utter failure of
many negotiations, and a careful reconsideration, now
had, of the whole subject, at a moment when the pas-
sions are laid, and no present interest or emergency
exists to bias the judgment, have fully convinced this
government that this is not only the simplest and best,
but the only rule which can be adopted and observed
consistently with the rights and honor of the United
States and the security of their citizens. 1 That rule
announces, therefore, what will hereafter be the prin-
ciple maintained by their government. In every reg-
ularly documented American merchant vessel the crew
who navigate it will find their protection in the flag
which floats over them" 2
1 The "United States Navy Regulations" (1876) contains the fol-
lowing provision : " Commanders of public vessels of war are not to
suffer their vessels to be searched by any foreign power under any
pretext, nor any officers or men to be taken out, so long as they have
power of resistance. If force be used, resistance must be continued
as long as possible. If overcome, they are to yield their vessel, but
not their men without the vessel." "United States Navy Regula-
tions," ed. 1876, p. 41, par. 54.
* Secretary "Webster to Lord Ashburton, Aug. 8, 1842; "Webster
THE RIGHT OF SEARCH. 333
4:. The Right of Convoy. At a time when the rules
of maritime capture were rigidly and, at times, harshly
and unjustly enforced, it is not remarkable that neu-
trals should have sought to mitigate their severity by
advocating methods which, while securing to bellig-
erents their existing rights, were also calculated to re-
lieve neutral commerce from some of the burdens to
which it was exposed in war. The most important
attempt of this kind was that originated by the Baltic
powers, toward the close of the last century, which has
become known as the right of convoy. It was con-
tended, in behalf of those powers, that the presence of
a public armed vessel, with a fleet of neutral merchant
ships, was sufficient to exempt them from search upon
proper assurance being given, by the commanding offi-
cer of ^the armed vessel, that the ships under his con-
voy contained neither enemy goods nor contraband of
war. In this form the right was first asserted by Swe-
den, and later by Holland, in the seventeenth century.
The latter power, however, upon becoming a belliger-
ent, changed its policy, and refused to recognize a prac-
tice for which it had formerly contended as a neutral.
Renewed interest was shown in the subject between
the years 1780 and 1800, during which period several
treaties were entered into, chiefly by the Baltic pow-
ers, stipulating for the exemption from search of neu-
tral vessels under neutral convoy.
The introduction of the new rule was vigorously
opposed by Great Britain, a power at that time more
interested than any other in the maintenance of bel-
Diplomatic and Official Papers," p. 101, cited by Halleck, vol. ii.,
pp. 303, 304
384 OUTLINES OF INTERNATIONAL LAW.
ligerent rights at sea. The position assumed by that
government was, in substance, stated by Sir William
Scott, in the case of the Maria, and may be summa-
rized as follows :
(a.} The laws of maritime capture give to a belliger-
ent an incontestable right to stop and search, on the
high seas, all neutral merchant vessels.
(&.) A search, to be lawful, must be exercised directly
by the belligerent cruiser, a separate search being made
in the case of each neutral vessel encountered.
(c.) A neutral government cannot interpose its au-
thority between a belligerent armed vessel and a neu-
tral merchant ship, by giving to one of its public ves-
sels instructions which are calculated to abridge, in
any manner, the belligerent right of search.
(d.) The resistance of a convoying ship amounts, in
eifect, to resistance to search on the part of the mer-
chant vessels composing the convoy, and involves them
in the penalty of condemnation for such resistance of
search. 1
As England was at that time sufficiently powerful
at sea to maintain its view against the opposition of
any existing state, the neutral powers regarded the
emergency as one of such importance as to seriously
threaten the very existence of their commerce. To
protect their menaced interests, a treaty was negoti-
ated which created the defensive alliance known as the
Armed Neutrality of 1800, the purpose of which was
to maintain the principle of convoy as described in the
treaty. In 1801, however, Russia, though a party to
the Armed Neutrality, entered into an agreement rec-
1 Case of the Maria, Robinson, "Admiralty Reports," p. 340.
THE RIGHT OF SEARCH. 355
ognizing the right of a belligerent to visit neutral mer-
chant vessels sailing under a convoy ; and the constant-
ly increasing maritime power of England sufficed to
defer indefinitely the general adoption of the principle
of convoy as a rule of International Law. Since the
beginning of this century, the right has been stipulated
for in a number of treaties, to which the Continental
states of Europe have been parties. England alone
refuses to recognize the right, even as a part of the
conventional law of nations, as she has ever denied its
existence as a custom based upon general international
usage.
The views held as to the right of convoy by the dif-
ferent departments of the United States government
have been at considerable variance. The political de-
partments have uniformly recognized its existence, and
have endeavored to secure its general acceptance by
treaty. The United States Navy Eegulations provide
in considerable detail for the manner in which the right
of convoy shall be exercised by its public armed ves-
sels. If the convoyed vessel is bound to a belligerent
port the commander of the convoy is to require proof
that there are no contraband articles on board ; and
without such proof he is not to afford her protection
against a belligerent cruiser, unless specially directed
to do so. " He is not to permit the vessels under his
protection to be searched, or detained, by any belliger-
ent cruiser." l The judicial department, on the other
hand, has followed the English precedents in denying
the existence of the right of convoy as a rule, or prin-
ciple, of International Law.
1 "Navy Regulations of the United States," 1876, pp. 133, 134.
25
386 OUTLINES OF INTERNATIONAL LAW.
At the present time it is not believed that any seri-
ous objection would be offered, by any modern state,
to the general adoption of the principle of convoy as a
rule of International Law, under such restrictions as
would be calculated to prevent abuse, and accompa-
nied by such conditions as would secure to belligerents
a right as effective as that which they noAV enjoy.
That such a rule has not been adopted, or seriously ad-
vocated, is doubtless due to the fact that the necessity
for its existence has passed away. The introduction
of steam navigation involved an immediate and radical
reorganization of the carrying trade of the world. The
establishment of steamship lines, upon the old routes
of commerce, has monopolized a trade which was for-
merly carried on in sailing vessels, and it is no longer
regarded as desirable that even sailing vessels, in time
of war, should move in fleets or convoys.
5. Searches Authorized in Time of Peace. The right
of search has been shown to be a belligerent right, and
so existent only in time of war. In time of peace a
right of visitation or search is recognized in the fol-
lowing cases :
(a.) Search to Execute Revenue Laws. Merchant
vessels coming into the jurisdiction of a state are sub-
ject to such inspection, and their cargoes to such ex-
amination and search, as are warranted by the munic-
ipal laws of that state, or are necessary to the enforce-
ment of its sanitary and customs regulations. A vessel
which attempts to evade such inspection, at any time
during its sojourn, may be detained, and subjected to
such penalties as are authorized by the laws of the
offended state. It is questionable whether the right
exists of pursuing such vessels upon the high seas, and
THE RIGHT OF SEARCH. 387
of effecting their capture beyond the jurisdictional
waters of the captor's state. 1 If such right exists at
all, it is based upon international comity, and, in any
particular case, its exercise must be justified by the
emergency existing, in which event the government to
which the offending vessel belongs may, and usually
does, waive its strict rights in the premises, and de-
clines to protect its subjects in wrong-doing. 2
(5.) Search on Suspicion of Piracy. Public armed
vessels of any state are justified, when reasonable
grounds of suspicion exist, in stopping vessels on the
high seas which are believed to be engaged in piratical
undertakings. If the search be made in good faith,
and upon grounds warranting a suspicion of piracy,
no claim for damage can be established, even in cases
where the character of the ship visited proves to be
legitimate.
(c.) Search of Merchant Ships by War Vessels of the
same State. The public armed vessels of a state may
execute such visits of search and inspection, upon mer-
chant vessels of the same nationality, as are authorized
by the laws of the state under whose flag they sail.
This is a question of municipal law pure and simple,
and the search authorized may be as frequent or infre-
quent, as lax or as vigorous, as is deemed best by the
government to which both vessels belong.
(d.) Right of Approach to Verify Nationality.
Public armed vessels, of whatever nationality, are
also authorized to approach merchant vessels on the
1 See opinion of Lord Stowell in the case of the Louis, Dodson,
"Admiralty Reports," p. 246. See, also, the opinion of Sir Travers
Twiss, in the case of the Cagliari, Boyd's Wheaton, p. 169.
4 Lawrence's Wheaton, pp. 267-275.
388 OUTLINES OF INTERNATIONAL LAW.
high seas for the purpose of ascertaining their nation-
ality. In the performance of this duty, except where
suspicion of piracy exists, they are limited to hailing
and the use of flags and signals. They board such
vessels at their peril.
Case of the Virginius. The question of search in
peace is illustrated by the case of the Yirginius. The
Yirginius was a steamer which had been specially con-
structed, in England, with a view to her employment
as a blockade runner. While engaged in this service
she was captured by one of the United States block-
ading squadrons, and was condemned and sold for vio-
lation of blockade. She afterward came into posses-
sion of the United States, in satisfaction of a debt, and
on August 2, 1870, was sold, ostensibly to one Patter-
son, a resident of New York. At this sale a formal
certificate of registry was issued, giving her the char-
acter of a merchant vessel of the United States. From
this time, until 1873, she was engaged in various under-
takings, some of which were of so questionable a char-
acter as to have involved the forfeiture of her register,
had they been made known to the proper authority.
No complaint appears to have been made to the gov-
ernment of the United States as to her character, or
employment, during the period in question.
On October 30, 1873, she sailed from Jamaica for
Port Limon, in Costa Rica, carrying the American
flag, and provided with regular clearance papers from
the American consul, at Kingston, Jamaica. On Octo-
ber 31, while on the high seas, about twenty miles
distant from the island of Cuba, she was sighted and
chased by the Spanish war steamer Tornado. After
a pursuit of about eight hours she was captured, on the
THE RIGHT OF SEARCH. 339
high seas, at a point about sixty miles distant from the
coast of Cuba, and twenty-three miles from the island
of Jamaica, in which direction she was steaming at
the time. She was boarded by an officer of the Tor-
nado, her officers, crew, and passengers were made pris-
oners, and she was sent under a prize crew to the Span-
ish port of Santiago de Cuba, where she arrived on the
evening of November 1.
At nine o'clock on the morning of the following day
a court-martial was convened for the trial of the capt-
ured persons, who were arraigned on a charge of piracy.
The court-martial completed its labors at four o'clock
in the afternoon of the same day. On the morning of
November -i four persons were executed, on the 7th
twelve, on the 13th thirty-seven more, including a num-
ber of British subjects and citizens of the "United States.
The 'attention of the Spanish government was imme-
diately drawn to the occurrence, and protests against
the action of its subordinate officials were made by the
American consuls at Havana and Santiago de Cuba,
but with so little eif ect that, on November 1-i, the
United States minister to Spain was instructed to de-
mand the restoration of the steamer, the return and
delivery to the United States of the persons who had
been captured, and the punishment of the officials who
had been concerned in the capture of the vessel and
the execution of her crew. He was also instructed to
demand that the flag of the United States should be
saluted in the harbor of Santiago de Cuba. After
some correspondence between the two governments
an agreement was entered into on November 29, be-
tween the Secretary of State and the Spanish minister
in "Washington, stipulating for the restoration of the
390 OUTLINES OF INTERNATIONAL LAW.
vessel and the surrender of the survivors of the pas*
sengers and crew. It was also agreed that the flag of
the United States should be saluted on the 25th day of
December next ensuing. If, however, on or before
that date, the Spanish government should prove that
the Virginius was not entitled to her American regis-
ter, the salute was to be spontaneously dispensed with ;
the United States agreeing to institute legal proceed-
ings against the vessel, if it should be found that she
had violated any law of the United States, and against
any person who was shown to have been concerned in
such violation.
The ship and survivors were surrendered at Santiago
de Cuba on December 18, 1873 ; and, it having been
made to appear, to the satisfaction of the United States,
that the Yirginius was not entitled to carry its flag
and papers, the Spanish minister was formally notified
that the salute would be dispensed with.
The following conclusions seem to be warranted by
the facts in the case :
(.) The Yirginius was not a pirate, whatever may
have been the character of the transaction in which
she was engaged, and the Spanish authorities acted
without warrant of International Law in proceeding
against the crew and passengers for the crime of pi-
racy.
(&.) The Spanish government would have been justi-
fied in resisting any acts of war or hostility directed
against itself, and occurring within its territorial wa-
ters. It matters not with whom such acts or attempts
originated, or by whom they were committed, whether
subjects or aliens. Had the Yirginius, therefore, been
found in Spanish jurisdiction, engaged in landing, or
THE RIGHT OF SEARCH.
attempting to land, her passengers upon the coast of
Cuba, her forcible seizure would have been justified.
Had resistance been offered, that resistance could have
been overcome by force at any cost of life or property.
The treatment of those on board would then have been
determined, according to the nature and degree of their
offences, by the municipal laws of Spain. If the pro-
visions of that system of law had been affected or mod-
ified by treaty stipulations, guaranteeing to the citizens
or subjects of foreign states certain rights and privi-
leges in the event of their being charged with crime
while in Spanish jurisdiction, the government of Spain
would have been responsible for the observance of the
treaty in all cases to which its provisions applied.
(c.) The pursuit and capture of the vessel on the high
seas was an act of very doubtful validity, and could
only "have been justified, in any event, by the extreme
urgency of the case, and then only in the exercise of
the right of self-defence. In this instance it is ex-
tremely doubtful whether such an emergency existed
as to justify a resort to force in self-defence. The Vir-
ginius was flying the American flag when sighted, and
had not then entered Spanish waters ; until she did so
enter them she was not subject to visitation and search,
still less to pursuit and capture.
(d.) The later conduct of the Spanish authorities in
Cuba can only be characterized as unnecessary, not
warranted by the emergency, and cruel and inhuman
in the extreme. It was also contrary to the stipula-
tions of treaties, and was grossly illegal even when
judged by the standard of the municipal law of Spain.
The Yirginius was an unarmed merchant vessel. She
offered, and was capable of offering, no resistance to
392 OUTLINES OF INTERNATIONAL LAW.
search or capture. Her passengers, at the instant of
capture, were not armed or organized, and so were in-
capable of levying war against the authority of Spain,
whatever may have been their ultimate intention. So
soon as the passengers and crew were made prisoners
they were absolutely powerless to do harm, and the
fact that the ship sailed under the American flag
should have suggested such reasonable delay in the
proceedings against them as would have sufficed to
enable proper representations to be made to that gov-
ernment as to the service in which its flag and papers
were being used.
(e.} The action of the Spanish authorities in this
matter would not have been justified or recognized as
lawful, had it been performed by a belligerent in time
of war. Had a state of open war existed, and had the
Yirginius been captured at sea with enemy goods or
contraband articles on board, the ship would not have
been involved in the forfeiture, and her passengers and
crew could not have been subjected to detention.
Had she been captured in the act of violating a legal
blockade, the ship and cargo alone would have been
liable to forfeiture. Had she been engaged in carry-
ing military persons to a hostile destination her con-
traband passengers only could have been made prison-
ers of war. The crew could have incurred no penal
consequences for their share in the transaction.
References. The student, for fuller discussion of this subject, is
referred to Vattel, bk. iii., chap, vii., 114-116"; Halleck, vol. ii.,
chap, xxvii., with the references there given to the " American
State Papers ;" Boyd's Wheaton, pp. 169-173 and 607-622 ; Man-
ning, bk. v., chap. xi. ; Phillimore, vol. iii., pp. 522-558 ; Dahlgren,
pp. 100-110; Woolsey, 208-221; Glass, "Marine International
THE RIGHT OF SEARCH. 393
Law," pp. 509-552; Dana's Wheaton and Lawrence's Wbeaton, with
their references to the correspondence between the British and
American governments upon the question of impressment and the
rights of visitation and search ; G. F. De Martens, vol. ii., 321 ;
Heffier, pp. 318-328 ; Wheaton, " History of the Law of Nations,"
pp. 145-151, 392^49, 599-713; Hautefeuille, vol. iii., pp. 1-208.
APPENDIX A.
PROFESSOR FRANCIS LIBBER'S INSTRUCTIONS FOR
THE GOVERNMENT OF ARMIES OF THE UNITED
STATES IN THE FIELD.
THE need of a positive code of instructions was severely
felt during the early part of the Civil War in the United
States. During the first two years of that war the Fed-
eral government had succeeded in placing in the field
armies of unexampled size, composed, in great part, of
men taken from civil pursuits; most of whom were unfa-
miliar with military affairs, and so utterly unacquainted
with the usages of war. These armies were carrying on
hostile 'operations, of every kind, over a wide area, and
questions of considerable intricacy and difficulty were
constantly arising, which required for their decision a
knowledge of International Law which was not always
possessed by those to whom these questions were submit-
ted for decision. Conflicting decisions and rulings were
of frequent occurrence, in different armies, and, at times,
in different parts of the same field of operations; and
great harm not infrequently resulted before these decis-
ions could be reversed by competent authority.
To remedy this difficulty Professor Francis Lieber, an
eminent jurist, who had been for many years an esteemed
and honored citizen of the United States, was requested
by the Secretary of War to prepare a code of instructions
for the government of the armies in the field. This code,
while conforming to the existing usages of war on land,
was to contain such modifications as were necessary to
adapt those usages to the peculiar circumstances of the
396 APPENDIX.
contest then prevailing. The rules prepared by Dr. Lieber
were submitted to a board of officers, by whom they were
approved and recommended for adoption. They were
published in 1863, and were made obligatory upon the
armies of the United States by their publication in the
form of a General Order of the War Department.
Although prepared nearly a quarter of a century ago,
they are still in substantial accordance with the existing
rules of International Law upon the subject of which they
treat; and form the basis of Bluntschli's and other elab-
orate works upon the usages of war. They are accepted
by text writers of authority as having standard and per-
manent value, and as expressing, with great accuracy, the
usage and practice of nations in war.
There has been some misunderstanding, however, as to
the force and significance of Professor Lieber's rules, to
which it is proper to allude.
The war which existed at that time was strictly internal
in character; and, although the belligerency of the states
in rebellion had been recognized by the Federal govern-
ment, the character of the contest, in many of its aspects,
differed materially from an external war, in which the bel-
ligerent parties were independent states.
The war policy of the United States toward the insur-
rectionary forces was, in the main, in accordance with the
laws of war, as those laws were then accepted and under-
stood. Its enemies, however, were its own citizens, who,
for the time, denied its sovereign authority, and refused
obedience to its laws. Its right to suppress the rebellion,
and its right to choose its method of doing so, were alike
beyond dispute. In the exercise of this right it was at
perfect liberty to choose any policy between the methods
provided by its municipal laws, on the one hand, and those
provided by the law of nations on the other.
As a matter of fact it chose a war policy lying between
APPENDIX. 397
the extremes above indicated. General operations in the
field were carried on in accordance with the laws of war.
In its treatment of the property of individuals in rebellion,
in its view of occupation, and of occupied territory, and
in its policy toward the residents of such occupied terri-
tory, it pursued a course which it deemed best suited to
the task upon which it was then engaged the suppression
of a rebellion against its authority.
The rules, therefore, cannot fairly be said to contain a
full expression of the views or future policy of that gov-
ernment upon the subject of external war. Should such
a war occur, it is at least extremely probable that the
United States would range itself with those powers, whose
practice it is to maintain small permanent establishments,
and whose policy is defensive rather than offensive.
(General Orders No. 100, Adjutant General's Office, 1863.)
INSTRUCTIONS FOR THE GOVERNMENT OF
ARMIES OF THE UNITED STATES IN
THE FIELD.
PREPARED BY FRANCIS LIEBEE, LL.D., AND EEVISED BY A
BOAED OF OFFICEES OF THE UNITED STATES AEMY.
SECTION I.
MAETIAL LAW. MILITARY JUEISDICTION. MILITARY NE-
CESSITY. RETALIATION.
1. A place, district, or country occupied by an enemy
stands, in consequence of the occupation, under the Mar-
tial Law of the invading or occupying army, whether any
proclamation declaring Martial Law, or any public warn-
ing to the inhabitants, has been issued or not. Martial
398 APPENDIX.
Law is the immediate and direct effect and consequence
of occupation or conquest.
The presence of a hostile army proclaims its Martial
Law.
2. Martial Law does not cease during the hostile occu-
pation, except by special proclamation, ordered by the
commander-in-chief, or by special mention in the treaty
of peace concluding the war, when the occupation of a
place or territory continues beyond the conclusion of
peace as one of the conditions of the same.
3. Martial Law in a hostile country consists in the sus-
pension, by the occupying military authority, of the crim-
inal and civil law, and of the domestic administration and
government in the occupied place or territory, and in the
substitution of military rule and force for the same, as
well as in the dictation of general laws, as far as military
necessity requires this suspension, substitution, or dictation.
The commander of the forces may proclaim that the
administration of all civil and penal law shall continue,
either wholly or in part, as in times of peace, unless other-
wise ordered by the military authority.
4. Martial Law is simply military authority exercised in
accordance with the laws and usages of war. Military
oppression is not Martial Law; it is the abuse of the power
which that law confers. As Martial Law is executed by
military force, it is incumbent upon those who administer
it to be strictly guided by the principles of justice, honor,
and humanity virtues adorning a soldier even more than
other men, for the very reason that he possesses the power
of his arms against the unarmed.
5. Martial Law should be less stringent in places and
countries fully occupied and fairly conquered. Much
greater severity may be exercised in places or regions
where actual hostilities exist, or are expected and must
be prepared for. Its most complete sway is allowed
APPENDIX. 399
even in the commander's own country when face to face
with the enemy, because of the absolute necessities of the
case, and of the paramount duty to defend the country
against invasion.
To save the country is paramount to all other consider-
ations.
6. All civil and penal law shall continue to take its usual
course in the enemy's places and territories under Martial
Law, unless interrupted or stopped by order of the occu-
pying military power; but all the functions of the hostile
government legislative, executive, or administrative
whether of a general, provincial, or local character, cease
under Martial Law, or continue only with the sanction, or,
if deemed necessary, the participation of the occupier or
invader.
7. Martial Law extends to property, and to persons,
whether they are subjects of the enemy or aliens to that
governnfent.
8. Consuls, among American and European nations, are
not diplomatic agents. Nevertheless, their offices and
persons will be subjected to Martial Law in cases of ur-
gent necessity only; their property and business are not
exempted. Any delinquency they commit against the es-
tablished military rule may be punished as in the case of
any other inhabitant, and such punishment furnishes no
reasonable ground for international complaint.
9. The functions of ambassadors, ministers, or other
diplomatic agents, accredited by neutral powers to the
hostile government, cease, so far as regards the displaced
government,; but the conquering or occupying power
usually recognizes them as temporarily accredited to it-
self.
10. Martial Law affects chiefly the police and collection
of public revenue and taxes, whether imposed by the ex-
pelled government or by the invader, and refers mainly
400 APPENDIX.
to the support and efficiency of the army, its safety, and
the safety of its operations.
11. The law of war does not only disclaim all cruelty
and bad faith concerning engagements concluded with
the enemy during the war, but also the breaking of stipu-
lations solemnly contracted by the belligerents in time of
peace, and avowedly intended to remain in force in case
of war between the contracting powers.
It disclaims all extortions and other transactions for in-
dividual gain; all acts of private revenge, or connivance
at such acts.
Offences to the contrary shall be severely punished, and
especially so if committed by officers.
12. Whenever feasible, Martial Law is carried out in
cases of individual offenders by military courts; but sen-
tences of death shall be executed only with the approval
of the chief executive, provided the urgency of the case
does not require a speedier execution, and then only with
the approval of the chief commander.
13. Military jurisdiction is of two kinds: first, that
which is conferred and defined by statute; second, that
which is derived from the common law of war. Military
offences under the statute law must be tried in the man-
ner therein directed; but military offences which do not
come within the statute must be tried and punished under
the common law of war. The character of the courts
which exercise these jurisdictions depends upon the local
laws of each particular country.
In the armies of the United States the first is exercised
by courts-martial ; while cases which do not come within
the " Rules and Articles of War," or the jurisdiction con-
ferred by statute on courts-martial, are tried by military
commissions.
14. Military necessity, as understood by modern civil-
ized nations, consists in the necessity of those measures
APPENDIX. 401
which are indispensable for securing the ends of the war,
and which are lawful according to the modern law and
usages of war.
15. Military necessity admits of all direct destruction
of life or limb of armed enemies, and of other persons
whose destruction is incidentally unavoidable in the armed
contests of the war; it allows of the capturing of every
armed enemy, and every enemy of importance to the hos-
tile government, or of peculiar danger to the captor; it
allows of all destruction of property, and obstruction of
the ways and channels of traffic, travel, or communication,
and of all withholding of sustenance or means of life from
the enemy; of the appropriation of whatever an enemy's
country affords necessary for the subsistence and safety
of the army, and of such deception as does not involve
the breaking of good faith either positively pledged, re-
garding agreements entered into during the war, or sup-
posed by the modern law of war to exist. Men who take
up arms against one another in public war do not cease
on this account to be moral beings, responsible to one an-
other, and to God.
16. Military necessity does not admit of cruelty; that is,
the infliction of suffering for the sake of suffering or for
revenge, nor of maiming or wounding except in fight, nor
of torture to extort confessions. It does not admit of the
use of poison in any way, nor of the wanton devastation
of a district. It admits of deception, but disclaims acts of
perfidy; and, in general, military necessity does not include
any act of hostility which makes the return to peace un-
necessarily difficult.
17. War is not carried on by arms alone. It is lawful
to starve the hostile belligerent, armed or unarmed, so
that it leads to the speedier subjection of the enemy.
18. "When the commander of a besieged place expels the
non-combatants, in order to lessen the number of those
26
402 APPENDIX.
who consume his stock of provisions, it is lawful, though
an extreme measure, to drive them back, so as to hasten
on the surrender.
19. Commanders, whenever admissible, inform the ene-
my of their intention to bombard a place, so that the non-
combatants, and especially the women and children, may
be removed before the bombardment commences. But it
\s no infraction of the common law of war to omit thus
to inform the enemy. Surprise may be a necessity.
20. Public war is a state of armed hostility between
sovereign nations or governments. It is a law and requi-
site of civilized existence that men live in political, con-
tinuous societies, forming organized units, called states or
nations, whose constituents bear, enjoy, and suffer, advance
and retrograde together, in peace and in war.
21. The citizen or native of a hostile country is thus an
enemy, as one of the constituents of the hostile state or
nation, and as such is subjected to the hardships of the
war.
22. Nevertheless, as civilization has advanced during
the last centuries, so has likewise steadily advanced, espe-
cially in war on land, the distinction between the private
individual belonging to a hostile country and the hostile
country itself, with its men in arms. The principle has
been more and more acknowledged that the unarmed citi-
zen is to be spared in person, property, and honor as much
as the exigencies of war will admit.
23. Private citizens are no longer murdered, enslaved,
.or carried off to distant parts, and the inoffensive individ-
ual is as little disturbed in his private relations as the
commander of the hostile troops can afford to grant in
the overruling demands of a vigorous war.
24. The almost universal rule in remote times was, and
continues to be with barbarous armies, that the private
individual of the hostile country is destined to suffer every
APPENDIX. 403
privation of liberty and protection, and every disruption
of family ties. Protection was, and still is with uncivil-
ized people, the exception.
25. In modern regular wars of the Europeans, and their
descendants in other portions of the globe, protection of
the inoffensive citizen of the hostile country is the rule;
privation, and disturbance of private relations, are the ex-
ceptions.
26. Commanding generals may cause the magistrates
and civil officers of the hostile country to take the oath of
temporary allegiance or an oath of fidelity to their own
victorious government or rulers, and they may expel every
one who declines to do so. But whether they do so or
not, the people and their civil officers owe strict obedience
to them as long as they hold sway over the district or
country, at the peril of their lives.
27. The law of war can no more wholly dispense with
retaliation than can the law of nations, of which it is a
branch. Yet civilized nations acknowledge retaliation as
the sternest feature of war. A reckless enemy often leaves
to his opponent no other means of securing himself against
the repetition of barbarous outrage.
28. Retaliation will, therefore, never be resorted to as
a measure of mere revenge, but only as a means of pro-
tective retribution, and, moreover, cautiously and una-
voidably; that is to say, retaliation shall only be resort-
ed to after careful inquiry into the real occurrence, and
the character of the misdeeds that may demand retribu-
tion.
Unjust or inconsiderate retaliation removes the bellig-
erents farther and farther from the mitigating rules of a
regular war, and by rapid steps leads them nearer to the
internecine wars of savages.
29. Modern times are distinguished from earlier ages by
the existence, at one and the same time, of many nations
'404: APPENDIX.
and great governments related to one another in close in-
tercourse.
Peace is their normal condition; war is the exception.
The ultimate object of all modern war is a renewed state
of peace.
The more vigorously wars are pursued, the better it is
for humanity. Sharp wars are brief.
30. Ever since the formation and co-existence of modern
nations, and ever since wars have become great national
wars, war has come to be acknowledged not to be its own
end, but the means to obtain great ends of state, or to
consist in defence against wrong; and no conventional re-
striction of the modes adopted to injure the enemy is any
longer admitted; but the law of war imposes many limi-
tations and restrictions, on principles of justice, faith, and
honor.
SECTION II.
PUBLIC AND PRIVATE PROPERTY OF THE ENEMY. PROTEC-
TION OF PERSONS, AND ESPECIALLY WOMEN; OF RELIG-
ION, THE ARTS AND SCIENCES. PUNISHMENT OF CRIMES
AGAINST THE INHABITANTS OF HOSTILE COUNTRIES.
31. A victorious army appropriates all public money,
seizes all public movable property until further direction
by its government, and sequesters for its own benefit or
that of its government all the revenues of real property
belonging to the hostile government or nation. The title
to such real property remains in abeyance during military
occupation, and until the conquest is made complete.
32. A victorious army, by the martial power inherent in
the same, may suspend, change, or abolish, as far as the
martial power extends, the relations which arise from the
services due, according to the existing laws of the invaded
country, from one citizen, subject, or native of the same to
another.
APPENDIX. 405
The commander of the army must leave it to the ul-
timate treaty of peace to settle the permanency of this
change.
33. It is no longer considered lawful on the contrary,
it is held to be a serious breach of the law of war to
force the subjects of the enemy into the service of the
victorious government, except the latter should proclaim,
after a fair and complete conquest of the hostile country
or district, that it is resolved to keep the country, district,
or place permanently as its own, and make it a portion of
its own country.
34. As a general rule, the property belonging to church-
es, to hospitals, or other establishments of an exclusively
charitable character, to establishments of education, or
foundations for the promotion of knowledge, whether
public schools, universities, academies of learning or ob-
servatories, museums of the fine arts, or of a scientific
character such property is not to be considered public
property in the sense of paragraph 31 ; but it may be taxed
or used when the public service may require it.
35. Classical works of arts, libraries, scientific collec-
tions, or precious instruments, such as astronomical tele-
scopes, as well as hospitals, must be secured against all
avoidable injury, even when they are contained in fortified
places while besieged or bombarded.
36. If such works of art, libraries, collections, or instru-
ments belonging to a hostile nation or government, can be
removed without injury, the ruler of the conquering state
or nation may order them to be seized and removed for
the benefit of the said nation. The ultimate ownership is
to be settled by the ensuing treaty of peace.
In no case shall they be sold or given away, if captured
by the armies of the United States, nor shall they ever be
privately appropriated, or wantonly destroyed or injured.
37. The United States acknowledge and protect, in hos-
406 APPENDIX.
tile countries occupied by them, religion and morality;
strictly private property; the persons of the inhabitants,
especially those of women; and the sacredness of domes-
tic relations. Offences to the contrary shall be rigorously
punished.
This rule does not interfere with the right of the victo-
rious invader to tax the people or their property, to levy
forced loans, to billet soldiers, or to appropriate property,
especially houses, land, boats or ships, and churches, for
temporary and military uses.
38. Private property, unless forfeited by crimes or by
offences of the owner, can be seized only by way of mili-
tary necessity, for the support or other benefit of the army
of the United States.
If the owner has not fled, the commanding officer will
cause receipts to be given, which may serve the spoliated
owner to obtain indemnity.
39. The salaries of civil officers of the hostile govern-
ment who remain in the invaded territory, and continue
the work of their office, and can continue it according to
the circumstances arising out of the war such as judges,
administrative or police officers, offices of city or com-
munal governments are paid from the public revenue of
the invaded territory, until the military government has
reason wholly or partially to discontinue it. Salaries or
incomes connected with purely honorary titles are always
stopped.
40. There exists no law or body of authoritative rules
of action between hostile armies, except that branch of
the law of nature and nations which is called the laAV and
usages of war on land.
41. All municipal law of the ground on which the armies
stand, or of the countries to which they belong, is silent
and of no effect between armies in the field.
42. Slavery, complicating and confounding the ideas of
APPENDIX. 407
property (that is of a thing], and of personality (that is
of humanity), exists according to municipal law or local
law only. The law of nature and nations has never ac-
knowledged it. The digest of the Roman Law enacts the
early dictum of the pagan jurist, that "so far as the law
of nature is concerned, all men are equal." Fugitives es-
caping from a country in which they were slaves, villains,
or serfs into another country, have, for centuries past, been
held free and acknowledged free by judicial decisions of
European countries, even though the municipal law of the
country in which the slave had taken refuge acknowledged
slavery within its own dominions.
43. Therefore, in a war between the United States and
a belligerent which admits of slavery, if a person held in
bondage by that belligerent be captured by or come as a
fugitive under the protection of the military forces of the
United States, such person is immediately entitled to the
rights and privileges of a freeman. To return such person
into slavery would amount to enslaving a free person, and
neither the United States nor any officer under their au-
thority can enslave any human being. Moreover, a person
so made free by the law of war is under the shield of the
law of nations, and the former owner or state can have,
by the law of postliminy, no belligerent lien or claim of
service.
44. All wanton violence committed against persons in
the invaded country, all destruction of property not com-
manded by the authorized officer, all robbery, all pillage
or sacking, even after taking a place by main force, all
rape, wounding, maiming, or killing of such inhabitants,
are prohibited under the penalty of death, or such other
severe punishment as may seem adequate for the gravity
of the offence.
A soldier, officer or private, in the act of committing
such violence, and disobeying a superior ordering him to
408 APPENDIX.
abstain from it, may be lawfully killed on the spot by such
superior.
45. All captures and booty belong, according to the
modern law of war, primarily to the government of the
captor.
Prize money, whether on sea or land, can now only be
claimed under local law.
46. Neither officers nor soldiers are allowed to make
use of their position or power in the hostile country for
private gain, not even for commercial transactions other-
wise legitimate. Offences to the contrary committed by
commissioned officers will be punished with cashiering or
such other punishment as the nature of the offence may
require; if by soldiers, they shall be punished according
to the nature of the offence.
47. Crimes punishable by all penal codes, such as arson,
murder, maiming, assaults, highway robbery, theft, burg-
lary, fraud, forgery, and rape, if committed by an American
soldier in a hostile country against its inhabitants, are not
only punishable as at home, but in all cases in which death
is not inflicted, the severer punishment shall be preferred.
SECTION III.
DESERTERS. PRISONERS OF WAR. HOSTAGES. BOOTY
ON THE BATTLE-FIELD.
48. Deserters from the American army, having entered
the service of the enemy, suffer death if they fall again
into the hands of the United States, whether by capture,
or being delivered up to the American army; and if a de-
serter from the enemy, having taken service in the army
of the United States, is captured by the enemy, and pun-
ished by them with death or otherwise, it is not a breach
against the law and usages of war, requiring redress or
retaliation.
49. A prisoner of war is a public enemy armed or at-
APPENDIX. 4.99
tached to the hostile army for active aid, who has fallen
into the hands of the captor, either fighting or wounded,
on the field or in the hospital, by individual surrender or
by capitulation.
All soldiers, of whatever species of arms; all men who
belong to the rising en masse of the hostile country; all
those who are attached to the army for its efficiency and
promote directly the object of the war, except such as are
hereinafter provided for; all disabled men or officers on
the field or elsewhere, if captured; all enemies who have
thrown away their arms and ask for quarter, are prisoners
of war, and as such exposed to the inconveniences as well
as entitled to the privileges of a prisoner of war.
50. Moreover, citizens who accompany an army for
whatever purpose, such as sutlers, editors, or reporters of
journals, or contractors, if captured, may be made prison-
ers of war, and be detained as such.
The monarch and members of the hostile reigning fam-
ily, male or female, the chief, and chief officers of the hos-
tile government, its diplomatic agents, and all persons who
are of particular and singular use and benefit to the hos-
tile army or its government, are, if captured on belliger-
ent ground, and if unprovided with a safe-conduct granted
by the captor's government, prisoners of war.
51. If the people of that portion of an invaded country
which is not yet occupied by the enemy, or of the whole
country, at the approach of a hostile army, rise under a
duly authorized levy, en masse to resist the invader, they
are now treated as public enemies, and, if captured, are
prisoners of war.
52. No belligerent has the right to declare that he will
treat every captured man in arms of a levy en masse as a
brigand or bandit.
If, however, the people of a country, or any portion of
the same, already occupied by an army, rise against it,
410 APPENDIX.
they are violators of the laws of war, and are not entitled
to their protection.
53. The enemy's chaplains, officers of the medical staff,
apothecaries, hospital nurses and servants, if they fall into
the hands of the American army, are not prisoners of war,
unless the commander has reasons to retain them. In this
latter case, or if, at their own desire, they are allowed to
remain with their captured companions, they are treated
as prisoners of war, and may be exchanged if the com-
mander sees fit.
54. A hostage is a person accepted as a pledge for the
fulfilment of an agreement concluded between belligerents
during the war, or in consequence of a war. Hostages are
rare in the present age.
55. If a hostage is accepted, he is treated like a prisoner
of war, according to rank and condition, as circumstances
may admit.
56. A prisoner of war is subject to no punishment for
being a public enemy, nor is any revenge wreaked upon
him by the intentional infliction of any suffering, or dis-
grace, by cruel imprisonment, want of food, by mutilation,
death, or any other barbarity.
57. So soon as a man is armed by a sovereign govern-
ment, and takes the soldier's oath of fidelity, he is a bellig-
erent; his killing, wounding, or other warlike acts, are no
individual crimes or offences. No belligerent has a right
to declare that enemies of a certain class, color, or condi-
tion, when properly organized as soldiers, will not be
treated by him as public enemies.
58. The law of nations knows of no distinction of color,
and if an enemy of the United States should enslave and
sell any captured persons of their army, it would be a
case for the severest retaliation, if not redressed upon com-
plaint.
The United States cannot retaliate by enslavement ;
APPENDIX.
therefore death must be the retaliation for this crime
against the law of nations.
59. A prisoner of war remains answerable for his crimes
committed against the captor's army or people, committed
before he was captured, and for which he has not been
punished by his own authorities.
All prisoners of war are liable to the infliction of retal-
iatory measures.
60. It is against the usage of modern war to resolve, in
hatred and revenge, to give no quarter. No body of troops
has the right to declare that it will not give, and therefore
will not expect, quarter ; but a commander is permitted to
direct his troops to give no quarter, in great straits, when
his own salvation makes it impossible to cumber himself
with prisoners.
61. Troops that give no quarter have no right to kill
enemies,, already disabled on the ground, or prisoners capt-
ured by other troops.
62. All troops of the enemy known or discovered to give
no quarter in general, or to any portion of the army, re-
ceive none.
63. Troops who fight in the uniform of their enemies,
without any plain, striking, and uniform mark of distinc-
tion of their own, can expect no quarter.
64. If American troops capture a train containing uni-
forms of the enemy, and the commander considers it ad-
visable to distribute them for use among his men, some
striking mark or sign must be adopted to distinguish the
American soldier from the enemy.
65. The use of the enemy's national standard, flag, or
other emblem of nationality, for the purpose of deceiving
the enemy in battle, is an act of perfidy by which they
lose all claim to the protection of the laws of war.
66. Quarter having been given to an enemy by Ameri-
can troops, under a misapprehension of his true character,
412 APPENDIX.
he may, nevertheless, be ordered to suffer death if, within
three days after the battle, it be discovered that he be-
longs to a corps which gives no quarter.
67. The law of nations allows every sovereign gov-
ernment to make war upon another sovereign state, and,
therefore, admits of no rules or laws different from those
of regular warfare, regarding the treatment of prisoners
of war, although they may belong to the army of a gov-
ernment which the captor may consider as a wanton and
unjust assailant.
68. Modern wars are not internecine wars, in which the
killing of the enemy is the object. The destruction of
the enemy in modern war, and, indeed, modern war itself,
are means to obtain that object of the belligerent which
lies beyond the war.
Unnecessary or revengeful destruction of life is not
lawful.
69. Outposts, sentinels, or pickets are not to be fired
upon, except to drive them in, or when a positive order,
special or general, has been issued to that effect.
70. The use of poison in any manner, be it to poison
wells, or food, or arms, is wholly excluded from modern
warfare. He that uses it puts himself out of the pale of
the law and usages of war.
71. Whoever intentionally inflicts additional wounds on
an enemy already wholly disabled, or kills such an enemy,
or who orders or encourages soldiers to do so, shall suffer
death, if duly convicted, whether he belongs to the army
of the United States, or is an enemy captured after having
committed his misdeed.
72. Money and other valuables on the person of a pris-
oner, such as watches or jewelry, as well as extra clothing,
are regarded by the American army as the private proper-
ty of the prisoner, and the appropriation of such valuables
or money is considered dishonorable, and is prohibited.
APPENDIX. 413
Nevertheless, if large sums are found upon the persons
of prisoners, or in their possession, they shall be taken
from them, and the surplus, after providing for their own
support, appropriated for the use of the army, under the
direction of the commander, unless otherwise ordered by
the government. Nor can prisoners claim, as private prop-
erty, large sums found and captured in their train, although
they had been placed in the private luggage of the pris-
oners.
73. All officers, when captured, must surrender their
side-arms to the captor. They may be restored to the
prisoner in marked cases, by the commander, to signalize
admiration of his distinguished bravery, or approbation
of his humane treatment of prisoners before his capture.
The captured officer to whom, they may be restored can-
not wear them during captivity.
74. A prisoner of war being a public enemy, is the pris-
oner of the government, and not of the captor. No ran-
som can be paid by a prisoner of war to his individual
captor, or to any officer in command. The government
alone releases captives, according to rules prescribed by
itself.
75. Prisoners of war are subject to confinement or im-
prisonment such as may be deemed necessary on account
of safety, but they are to be subjected to no other inten-
tional suffering or indignity. The confinement and mode
of treating a prisoner may be varied during his captivity
according to the demands of safety.
76. Prisoners of war shall be fed upon plain and whole-
some food whenever practicable, and treated with hu-
manity.
They may be required to work for the benefit of the
captor's government, according to their rank and condi-
tion.
77. A prisoner of war who escapes may be shot, or oth-
414 APPENDIX.
erwise killed in his flight; but neither death nor any other
punishment shall be inflicted upon him simply for his at-
tempt to escape, which the law of war does not consider
a crime. Stricter means of security shall be used after an
unsuccessful attempt at escape.
If, however, a conspiracy is discovered, the purpose of
which is a united or general escape, the conspirators may
be rigorously punished, even with death; and capital pun-
ishment may also be inflicted upon prisoners of war dis-
covered to have plotted rebellion against the authorities
of the captors, whether in union with fellow-prisoners or
other persons.
78. If prisoners of war, having given no pledge nor made
any promise on their honor, forcibly or otherwise escape,
and are captured again in battle, after having rejoined
their own army, they shall not be punished for their es-
cape, but shall be treated as simple prisoners of war, al-
though they will be subjected to stricter confinement.
79. Every captured wounded enemy shall be medically
treated, according to the ability of the medical staff.
80. Honorable men, when captured, will abstain from
giving to the enemy information concerning their own
army, and the modern law of war permits no longer the
use of any violence against prisoners, in order to extort
the desired information, or to punish them for having
given false information.
SECTION IV.
PARTISANS. AHMED ENEMIES NOT BELONGING TO THE
HOSTILE AEMY. SCOUTS. AKMED PKOWLEKS. WAR-
EEBELS.
81. Partisans are soldiers armed and wearing the uni-
form of their army, but belonging to a corps which acts
detached from the main body for the purpose of making
inroads into the territory occupied by the enemy. If
APPENDIX. 415
captured, they are entitled to all the privileges of the
prisoner of war.
82. Men, or squads of men, who commit hostilities,
whether by fighting, or inroads for destruction or plunder,
or by raids of any kind, without commission, without be-
ing part and portion of the organized hostile army, and
without sharing continuously in the war, but who do so
with intermitting returns to their homes and vocations,
or with the occasional assumption of the semblance of
peaceful pursuits, divesting themselves of the character or
appearance of soldiers such men, or squads of men, are
not public enemies, and therefore, if captured, are not en-
titled to the privileges of prisoners of war, but shall be
treated summarily as highway robbers or pirates.
83. Scouts, or single soldiers, if disguised in the dress
of the country, or in the uniform of the army hostile to
their own, employed in obtaining information, if found
within of lurking about the lines of the captor, are treat-
ed as spies, and suffer death.
84. Armed prowlers, by whatever names they may be
called, or persons of the enemy's territory, who steal with-
in the lines of the hostile army, for the purpose of rob-
bing, killing, or of destroying bridges, roads, or canals, or
of robbing or destroying the mail, or of cutting the tele-
graph wires, are not entitled to the privileges of the pris-
oner of war.
85. War-rebels are persons within an occupied territory
who rise in arms against the occupying or conquering
army, or against the authorities established by the same.
If captured, they may suffer death, whether they rise
singly, in small or large bands, and whether called upon
to do so by their own, but expelled, government or not.
They are not prisoners of war; nor are they, if discovered
and secured before their conspiracy has matured to an
actual rising, or to armed violence.
416 APPENDIX.
SECTION V.
SAFE-CONDUCT. SPIES. WAR-TRAITORS. CAPTURED MES-
SENGERS. ABUSE OF THE FLAG OF TRUCE.
86. All intercourse between the territories occupied by
belligerent armies, whether by traffic, by letter, by travel,
or in any other way, ceases. This is the general rule, to
be observed without special proclamation.
Exceptions to this rule, whether by safe - conduct, or
permission to trade on a small or large scale, or by ex-
changing mails, or by travel from one territory into the
other, can take place only according to agreement ap-
proved by the government, or by the highest military au-
thority.
Contraventions of this rule are highly punishable.
8V. Ambassadors, and all other diplomatic agents of
neutral powers, accredited to the enemy, may receive safe-
conducts through the territories occupied by the belliger-
ents, unless there are military reasons to the contrary, and
unless they may reach the place of their destination con-
veniently by another route. It implies no international
affront if the safe-conduct is declined. Such passes are
usually given by the supreme authority of the state, and
not by subordinate officers.
88. A spy is a person who secretly, in disguise or under
false pretence, seeks information with the intention of
communicating it to the enemy.
The spy is punishable with death by hanging by the
neck, whether or not he succeed in obtaining the informa-
tion or in conveying it to the enemy.
89. If a citizen of the United States obtains information
in a legitimate manner, and betrays it to the enemy, be
he a military or civil officer, or a private citizen, he shall
suffer death.
90. A traitor under the law of war, or a war-traitor, is
APPENDIX. 417
a person in a place or district under martial law who, un-
authorized by the military commander, gives information
of any kind to the enemy, or holds intercourse with him.
91. The war-traitor is always severely punished. If his
offence consists in betraying to the enemy anything con-
cerning the condition, safety, operations, or plans of the
troops holding or occupying the place or district, his pun-
ishment is death.
92. If the citizen or subject of a country or place in-
vaded or conquered gives information to his own govern-
ment, from which he is separated by the hostile army, or
to the army of his government, he is a war-traitor, and
death is the penalty of his offence.
93. All armies in the field stand in need of guides, and
impress them if they cannot obtain them otherwise.
94. Xo person having been forced by the enemy to serve
as guide is punishable for having done so.
95. If a citizen of a hostile and invaded district volun-
tarily serves as a guide to the enemy, or offers to do so,
he is deemed a war-traitor, and shall suffer death.
96. A citizen serving voluntarily as a guide against his
own country commits treason, and will be dealt with ac-
cording to the law of his country.
97. Guides, when it is clearly proved that they have
misled intentionally, may be put to death.
98. All unauthorized or secret communication with the
enemy is considered treasonable by the law of war.
Foreign residents in an invaded or occupied territory,
or foreign visitors in the same, can claim no immunity
from this law. They may communicate with foreign
parts, or with the inhabitants of the hostile country, so
far as the military authority permits, but no further. In-
stant expulsion from the occupied territory would be the
very least punishment for the infraction of this rule.
99. A messenger carrying written despatches or verbal
27
418 APPENDIX.
messages from one portion of the army, or from a be-
sieged place, to another portion of the same army, or its
government, if armed, and in the uniform of his army,
and if captured while doing so, in the territory occupied
by the enemy, is treated by the captor as a prisoner of
war. If not in uniform, nor a soldier, the circumstances
connected with his capture must determine the disposition
that shall be made of him.
100. A messenger or agent who attempts to steal through
the territory occupied by the enemy, to further, in any
manner, the interests of the enemy, if captured, is not en-
titled to the privileges of the prisoner of war, and may be
dealt with according to the circumstances of the case.
101. While deception in war is admitted as a just and
necessary means of hostility, and is consistent with honor-
able warfare, the common law of war allows even capital
punishment for clandestine or treacherous attempts to in-
jure an enemy, because they are so dangerous, and it is so
difficult to guard against them.
102. The law of war, like the criminal law regarding
other offences, makes no difference on account of the dif-
ference of sexes, concerning the spy, the war-traitor, or
the war-rebel.
103. Spies, war - traitors, and war -rebels are not ex-
changed according to the common law of war. The ex-
change of such persons would require a special cartel,
authorized by the government, or, at a great distance from
it, by the chief commander of the army in the field.
104. A successful spy or war-traitor, safely returned to
his own army, and afterwards captured as an enemy, is
not subject to punishment for his acts as a spy or war-
traitor, but he may be held in closer custody as a person
individually dangerous.
APPENDIX. 419
SECTION VI.
EXCHANGE OF PRISONERS. FLAGS OF TKUCE. FLAGS OF
PROTECTION.
105. Exchanges of prisoners take place number for
number rank for rank wounded for wounded with
added condition for added condition such, for instance,
as not to serve for a certain period.
106. In exchanging prisoners of war, such numbers of
persons of inferior rank may be substituted as an equiva-
lent for one of superior rank as may be agreed upon by
cartel, which requires the sanction of the govei'nment, or
of the commander of the army in the field.
107. A prisoner of war is in honor bound truly to state
to the captor his rank; and he is not to assume a lower
rank than belongs to him, in order to cause a more advan-
tageous exchange; nor a higher rank, for the purpose of
obtaining better treatment.
Offences to the contrary have been justly punished by
the commanders of released prisoners, and may be good
cause for refusing to release such prisoners.
108. The surplus number of prisoners of war remaining
after an exchange has taken place is sometimes released
either for the payment of a stipulated sum of money, or,
in urgent cases, of provision, clothing, or other neces-
saries.
Such arrangement, however, requires the sanction of the
highest authority.
109. The exchange of prisoners of war is an act of con-
venience to both belligerents. If no general cartel has
been concluded, it cannot be demanded by either of them.
No belligerent is obliged to exchange prisoners of war.
A cartel is voidable so soon as either party has vio-
lated it.
110. No exchange of prisoners shall be made except
420 APPENDIX.
after complete capture, and after an accurate account of
them, and a list of the captured officers, has been taken.
111. The bearer of a flag of truce cannot insist upon
being admitted. He must always be admitted with great
caution. Unnecessary frequency is carefully to be avoided.
112. If the bearer of a flag of truce offer himself during
an engagement, he can be admitted as a very rare excep-
tion only. It is no breach of good faith to retain such a
flag of truce, if admitted during the engagement. Firing
is not required to cease on the appearance of a flag of
truce in battle.
113. If the bearer of a flag of truce, presenting himself
during an engagement, is killed or wounded, it furnishes
no ground of complaint whatever.
114. If it be discovered, and fairly proved, that a flag
of truce has been abused for surreptitiously obtaining
military knowledge, the bearer of the flag thus abusing
his sacred character is deemed a spy.
So sacred is the character of a flag of truce, and so nec-
essary is its sacredness, that while its abuse is an especially
heinous offence, great caution is requisite, on the other
hand, in convicting the bearer of a flag of truce as a spy.
115. It is customary to designate by certain flags (usu-
ally yellow), the hospitals in places which are shelled, so
that the besieging enemy may avoid firing on them. The
same has been done in battles, when hospitals are situated
within the field of the engagement.
116. Honorable belligerents often request that the hos-
pitals within the territory of the enemy may be desig-
nated, so that they may be spared.
An honorable belligerent allows himself to be guided
by flags, or signals of protection, as much as the contin-
gencies and the necessities of the fight will permit.
117. It is justly considered an act of bad faith, of in-
famy or fiendishness, to deceive the enemy by flags of
APPENDIX. 421
protection. Such act of bad faith may be good cause for
refusing to respect such flags.
118. The besieging belligerent has sometimes requested
the besieged to designate the buildings containing collec-
tions of works of art, scientific museums, astronomical ob-
servatories, or precious libraries, so that their destruction
may be avoided as much as possible.
SECTION VII.
THE PAROLE.
119. Prisoners of war may be released from captivity
by exchange, and, under certain circumstances, also by
parole.
120. The term parole designates the pledge of individ-
ual good faith and honor to do, or to omit doing, certain
acts after he who gives his parole shall have been dis-
missed, wholly or partially, from the power of the captor.
121. The pledge of the parole is always an individual
but not a private act.
122. The parole applies chiefly to prisoners of war
whom the captor allows to return to their country, or to
live in greater freedom within the captor's country or ter-
ritory, on conditions stated in the parole.
123. Release of prisoners of war by exchange is the
general rule; release by parole is the exception.
124. Breaking the parole is punished with death when
the person breaking the parole is captured again.
Accurate lists, therefore, of the paroled persons must
be kept by the belligerents.
125. When paroles are given and received, there must
be an exchange of two written documents, in which the
name and rank of the paroled individuals are accurately
and truthfully stated.
126. Commissioned officers only are allowed to give
their parole, and they can give it only with the permission
422 APPENDIX.
of their superior, as long as a superior in rank is within
reach.
127. No non-commissioned officer or private can give
his parole except through an officer. Individual paroles
not given through an officer are not only void, but subject
the individuals giving them to the punishment of death as
deserters. The only admissible exception is where indi-
viduals, properly separated from their commands, have
suffered long confinement without the possibility of being
paroled through an officer.
128. No paroling on the battle-field, no paroling of en-
tire bodies of troops after a battle, and no dismissal of
large numbers of prisoners, with a general declaration
that they are paroled, is permitted, or of any value.
129. In capitulations for the surrender of strong places
or fortified camps, the commanding officer, in cases of ur-
gent necessity, may agree that the troops under his com-
mand shall not fight again during the war, unless ex-
changed.
130. The usual pledge given in the parole is not to serve
during the existing war, unless exchanged.
This pledge refers only to the active service in the field,
against the paroling belligerent or his allies actively en-
gaged in the same war. These cases of breaking the pa-
role are patent acts, and can be visited with the punish-
ment of death; but the pledge does not refer to internal
service, such as recruiting or drilling the recruits, fortify-
ing places not besieged, quelling civil commotions, fight-
ing against belligerents unconnected with the paroling
belligerents, or to civil or diplomatic service for which
the paroled officer may be employed.
131. If the government does not approve of the parole,
the paroled officer must return into captivity; and should
the enemy refuse to receive him, he is free of his parole.
132. A belligerent government may declare, by a gen-
APPENDIX. 423
eral order, whether it will allow paroling, and on what
conditions it will allow it. Such order is communicated
to the enemy.
133. No prisoner of war can be forced by the hostile gov-
ernment to parole himself, and no government is obliged
to parole prisoners of war, or to parole all captured offi-
cers if it paroles any. As the pledging of the parole is
an individual act, so is paroling, on the other hand, an act
of choice on the part of the belligerent.
134. The commander of an occupying army may require
of the civil officers of the enemy, and of its citizens, any
pledge he may consider necessary for the safety or secur-
ity of his army; and upon their failure to give it, he may
arrest, confine, or detain them.
SECTION VIII.
ABMISTICE. CAPITULATION.
135. "An armistice is the cessation of active hostilities
for a period agreed upon between belligerents. It must
be agreed upon in writing, and duly ratified by the high-
est authorities of the contending parties.
136. If an armistice be declared, without conditions, it
extends no further than to require a total cessation of
hostilities along the front of both belligerents.
If conditions be agreed upon, they should be clearly ex-
pressed, and must be rigidly adhered to by both parties.
If either party violates any express condition, the armis-
tice may be declared null and void by the other.
137. An armistice may be general, and valid for all
points and lines of the belligerents; or special that is,
referring to certain troops or certain localities only.
An armistice may be concluded for a definite time; or
for an indefinite time, during which either belligerent may
resume hostilities on giving the notice agreed upon to the
other.
424: APPENDIX.
138. The motives which induce the one or the other
belligerent to conclude an armistice, whether it be expect-
ed to be preliminary to a treaty of peace, or to prepare
during the armistice for a more vigorous prosecution of
the war, do in no way affect the character of the armistice
itself.
139. An armistice is binding upon the belligerents from
the day of the agreed commencement; but the officers of
the armies are responsible from the day only when they
receive official information of its existence.
140. Commanding officers have the right to conclude
armistices binding on the district over which their com-
mand extends; but such armistice is subject to the ratifi-
cation of the superior authority, and ceases so soon as it
is made known to the enemy that the armistice is not rat-
ified, even if a certain time for the elapsing between giv-
ing notice of cessation and the resumption of hostilities
should have been stipulated for.
141. It is incumbent upon the contracting parties of an
armistice to stipulate what intercourse of persons or traf-
fic between the inhabitants of the territories occupied by
the hostile armies shall be allowed, if any.
If nothing is stipulated, the intercourse remains sus-
pended, as during actual hostilities.
142. An armistice is not a partial or a temporary peace;
it is only the suspension of military operations to the ex-
tent agreed upon by the parties.
143. When an armistice is concluded between a fortified
place and the army besieging it, it is agreed by all the
authorities on this subject that the besieger must cease all
extension, perfection, or advance of his attacking works,
as much so as from attacks by main force.
But as there is a difference of opinion among martial
jurists, whether the besieged have the right to repair
breaches or to erect new works of defence within the
APPENDIX. 425
place during an armistice, this point should be determined
by express agreement between the parties.
144. So soon as a capitulation is signed, the capitulator
has no right to demolish, destroy, or injure the works,
arms, stores, or ammunition in his possession, during the
time which elapses between the signing and the execu-
tion of the capitulation, unless otherwise stipulated in the
same.
145. "When an armistice is clearly broken by one of the
parties, the other party is released from all obligation to
observe it.
146. Prisoners, taken in the act of breaking an armis-
tice, must be treated as prisoners of war, the officer alone
being responsible who gives the order for such a violation
of an armistice. The highest authority of the belligerent
aggrieved may demand redress for the infraction of an
armistice.
147. Belligerents sometimes conclude an armistice while
their plenipotentiaries are met to discuss the conditions of
a treaty of peace; but plenipotentiaries may meet without
a preliminary armistice; in the latter case, the war is car-
ried on without any abatement.
SECTION IX.
ASSASSINATION.
148. The law of war does not allow proclaiming either
an individual belonging to the hostile army, or a citizen,
or a subject of the hostile government, an outlaw, who
may be slain without trial by any captor, any more than
the modern law of peace allows such international outlaw-
ry; on the contrary, it abhors such outrage. The sternest
retaliation should follow the murder committed in conse-
quence of such proclamation, made by whatever authority.
Civilized nations look with horror upon offers of rewards
for the assassination of enemies, as relapses into barbarism.
4:26 APPENDIX.
SECTION X.
INSURRECTION. CIVIL WAR. REBELLION.
149. Insurrection is the rising of people in arms against
their government, or a portion of it, or against one or
more of its laws, or against an officer or officers of the
government. It may be confined to mere armed resist-
ance, or it may have greater ends in view.
150. Civil war is war between two or more portions of
a country or state, each contending for the mastery of the
whole, and each claiming to be the legitimate government.
The term is also sometimes applied to war of rebellion,
when the rebellious provinces or portions of the state are
contiguous to those containing the seat of government.
151. The term rebellion is applied to an insurrection of
large extent, and is usually a war between the legitimate
government of a country and portions or provinces of the
same which seek to throw off their allegiance to it, and
set up a government of their own.
152. When humanity induces the adoption of the rules
of regular war toward rebels, whether the adoption is par-
tial or entire, it does in no way whatever imply a partial
or complete acknowledgment of their government, if they
have set up one, or of them, as an independent or sover-
eign power. Neutrals have no right to make the adoption
of the rules of war by the assailed government toward
rebels the ground of their own acknowledgment of the
revolted people as an independent power.
153. Treating captured rebels as prisoners of war, ex-
changing them, concluding of cartels, capitulations, or
other warlike agreements with them; addressing officers
of a rebel army by the rank they may have in the same;
accepting flags of truce; or, on the other hand, proclaim-
ing martial law in their territory, or levying war-taxes or
forced loans, or doing any other act sanctioned or de-
APPENDIX. 427
manded by the law and usages of public war between
sovereign belligerents, neither proves nor establishes an
acknowledgment of the rebellious people, or of the gov-
ernment which they may have erected, as a public or sov-
ereign power. Nor does the adoption of the rules of war
toward rebels imply an engagement with them extending
beyond the limits of these rules. It is victory in the field
that ends the strife, and settles the future relations be-
tween the contending parties.
154. Treating, in the field, the rebellious enemy accord-
ing to the law and usages of war, has never prevented the
legitimate government from trying the leaders of the re-
bellion or chief rebels for high-treason, and from treating
them accordingly, unless they are included in a general
amnesty.
155. All enemies in regular war are divided into two
general classes; that is to say, into combatants and non-
combatants, or unarmed citizens of the hostile govern-
ment.
The military commander of the legitimate government,
in a Avar of rebellion, distinguishes between the loyal citi-
zen in the revolted portion of the country and the disloyal
citizen. The disloyal citizens may further be classified
into those citizens known to sympathize with the rebel-
lion, without positively aiding it, and those who, without
taking up arms, give positive aid and comfort to the re-
bellious enemy, without being bodily forced thereto.
156. Common justice and plain expediency require that
the military commander protect the manifestly loyal citi-
zens, in revolted territories, against the hardships of the
war, as much as the common misfortune of all war admits.
The commander will throw the burden of the war, as
much as lies within his power, on the disloyal citizens of
the revolted portion or province, subjecting them to a
stricter police than the non-combatant enemies have to
428 APPENDIX.
suffer in regular war; and if he deems it appropriate, or
if his government demands of him, that every citizen shall,
by an oath of allegiance, or by some other manifest act,
declare his fidelity to the legitimate government, he may
expel, transfer, imprison, or fine the revolted citizens who
refuse to pledge themselves anew as citizens obedient to
the law, and loyal to the government.
"Whether it is expedient to do so, and whether reliance
can be placed upon such oaths, the commander or his gov-
ernment have the right to decide.
157. Armed or unarmed resistance by citizens of the
United States against the lawful movements of their
troops, is levying war against the United States, and is
therefore treason.
APPENDIX B.
THE GENEVA CONVENTION FOR THE AMELIORATION
OF THE CONDITION OF THE SICK AND WOUNDED
OF ARMIES IN THE FIELD.
Art. I. Ambulances and military hospitals shall be ac-
knowledged to be neuter, and, as such, shall be protected
and respected by belligerents so long as any sick or
wounded may be therein. Such neutrality shall cease if
the ambulances or hospitals should be held by a military
force.
Art. II. Persons employed in hospitals and ambulances,
comprising the staff for superintendence, medical service,
administration, transport of wounded, as well as chaplains,
shall participate in the benefit of neutrality, while so em-
ployed, and so long as there remain any wounded to bring
in or to succor.
Art. III. The persons designated in the preceding arti-
cle may, even after occupation by the enemy, continue to
fulfil their duties in the hospital or ambulance which they
serve, or may withdraw in order to rejoin the corps to
which they belong.
Under such circumstances, when these persons shall
cease from their functions, they shall be delivered by the
occupying army to the outposts of the enemy.
Art. IV. As the equipment of military hospitals re-
mains subject to the laws of war, persons attached to such
hospitals cannot, in withdrawing, carry away any articles
but such as are their private property.
Under the same circumstances an ambulance shall, on
the contrary, retain its equipment.
430 APPENDIX.
Art. V. Inhabitants of the country who may bring
help to the wounded shall be respected, and shall remain
free. The generals of the belligerent powers shall make
it their care to inform the inhabitants of the appeal ad-
dressed to their humanity, and the neutrality which will
be the consequence of it.
Any wounded man entertained and taken care of in a
house shall be considered a protection thereto. Any in-
habitant who shall have entertained wounded men in his
house shall be exempted from the quartering of troops, as
well as from a part of the contributions of war which
may be imposed.
Art. VI. Wounded or sick soldiers shall be entertained
and taken care of, to whatever nation they may belong.
Commanders-in-chief shall have the power to deliver
immediately, to the outposts of the enemy, soldiers who
have been wounded in an engagement, when circumstances
permit this to be done, and with the consent of both
parties.
Those who are recognized, after their wounds are healed,
as incapable of serving, shall be sent back to their own
country.
The others may also be sent back, on condition of not
bearing arms during the continuance of the war.
Evacuations, together with the persons under whose
direction they shall take place, shall be protected by an
absolute neutrality.
Art. VII. A distinctive and uniform flag shall be
adopted for hospitals, ambulances, and evacuations. It
must on every occasion be accompanied by the national
flag. An arm badge (brassard) shall also be allowed for
individuals neutralized, but the delivery thereof shall be
left to military authority.
The flag and arm badge shall bear a red cross on a
white ground.
APPENDIX. 431
Art. VIII. The details of execution of the present
convention shall be regulated by the commanders-in-chief
of belligerent armies, according to the instructions of their
respective governments, and in conformity with the gen-
eral principles laid down in this convention.
Art. IX. The high contracting powers have agreed to
communicate the present convention to those governments
which have not found it convenient to send plenipoten-
tiaries to the International Convention at Geneva, with
an invitation to accede thereto; the protocol is for that
purpose left open.
Art. X. The present convention shall be ratified, and
the ratifications exchanged at Berne, in four months, or
sooner if possible.
ADDITIONAL ARTICLES.
Art. I. The persons designated in Article II. of the
Convention shall, after the occupation by the enemy, con-
tinue to fulfil their duties to the sick and wounded, ac-
cording to their wants, in the ambulance or hospital which
they serve. When they request to withdraw, the com-
mander of the occupying troops shall fix the time of de-
parture, which he shall only be allowed to delay for a
short time in case of military necessity.
Art. II. Arrangements will have to be made by the
belligerent powers to assure to the neutralized person,
fallen into the hands of the army of the enemy, the entire
enjoyment of his salary.
Art. III. Under the conditions provided for in Arti-
cles I. and IV. of the Convention, the name " ambulance "
applies to field hospitals and other temporary establish-
ments, which follow the troops on the field of battle to
receive the sick and wounded.
Art. IV. In conformity with the spirit of Article V.
of the Convention, and to the reservations contained in
432 APPENDIX.
the protocol of 1864, it is explained that for the appoint-
ment of the charges relative to the quartering of troops,
and of the contributions of war, account only shall be
taken in an equitable manner of the charitable zeal dis-
played by the inhabitants.
Art. V. In addition to Article VI. of the Convention,
it is stipulated that, with the reservation of officers whose
detention might be important to the fate of arms, and
within the limits fixed by the second paragraph of that
article, the wounded who may fall into the hands of the
enemy shall be sent back to their country, after they are
cured, or sooner if possible, on condition, nevertheless,
of not again bearing arms during the continuance of the
war.
Art. VI. The boats which, at their own risk and peril,
during and after an engagement, pick up the shipwrecked
or wounded, or which, having picked them up, convey
them on board a neutral or hospital ship, shall enjoy, un-
til the accomplishment of their mission, the character of
neutrality, as far as the circumstances of the engagement
and the position of the ships engaged will permit.
The appreciation of these circumstances is intrusted to
the humanity of all the combatants. The wrecked and
wounded thus picked up and saved must not serve agaki
during the continuance of the war.
Art. VII. The religious, medical, and hospital staff of
any captured vessel are declared neutral, and, on leaving
the ship, may remove the articles and surgical instruments
which are their private property.
Art. VIII. The staff designated in the preceding arti-
cle must continue to fulfil their functions in the captured
ship, assisting in the removal of the wounded made by
the victorious party; they will then be at liberty to re-
turn to their country, in conformity with the second para-
graph of the first additional article.
APPENDIX. 433
The stipulations of the second additional article are ap-
plicable to the pay and allowance of the staff.
Art. IX. The military hospital ships remain under
martial law in all that concerns their stores; they become
the property of the captor, but the latter must not divert
them from their special appropriation during the continu-
ance of the war.
Art. X. Any merchantman, to whatever nation she
may belong, charged exclusively with removal of sick and
wounded, is protected by neutrality, but the mere fact,
noted on the ship's books, of the vessel having been vis-
ited by an enemy's cruiser, renders the sick and wounded
incapable of serving during the continuance of the war..
The cruiser shall even have the right of putting on board
an officer in order to accompany the convoy, and thus
verify the good faith of the operation.
If the merchant ship also carries a cargo, her neutrality
will still protect it, provided that such cargo is not of a
nature to be confiscated by the belligerent.
Art. XI. Wounded or sick sailors and soldiers, when
embarked, to whatever nation they belong, shall be pro-
tected and taken care of by their captors.
Their return to their own country is subject to the pro-
visions of Article VI. of the Convention, and of the ad-
ditional Article V.
Art. XII. The distinctive flag to be used with the na-
tional flag, in order to indicate any vessel or boat which
may claim the benefit of neutrality, in virtue of the prin-
ciples of this Convention, is a white flag with a red cross.
The belligerents may exercise in this respect any mode of
verification which they may deem necessary.
Military hospital ships shall be distinguished by being
painted white outside, with green strake.
Art. XIII. The hospital ships which are equipped at
the expense of the aid societies, recognized by the govern-
28
434: APPENDIX.
ments signing this Convention, and which are furnished
with a commission emanating from the sovereign, who
shall have given express authority for their being fitted
out, and with a certificate from the proper naval authority
that they have been placed under his control during their
fitting -out and on their final departure, and that they
were then appropriated solely to the purpose of their mis-
sion, shall be considered neutral, as well as the whole of
their staff. They shall be recognized and protected by
the belligerents.
They shall make themselves known by hoisting, together
with their national flag, the white flag with a red cross.
The distinctive mark of their staff, while performing their
duties, shall be an armlet of the same colors. The outer
painting of these hospital ships shall be white, with red
strake.
These ships shall bear aid and assistance to wound-
ed and wrecked belligerents, without distinction of na-
tionality.
They must take care not to interfere in any way with
the movements of the combatants. During and after
the battle they must do their duty at their own risk and
peril.
The belligerents shall have the right of controlling and
visiting them; they will be at liberty to refuse their as-
sistance, to order them to depart, and to detain them if
the exigencies of the case require such a step.
The wounded and wrecked picked up by these ships
cannot be reclaimed by either of the combatants, and
they will be required not to serve during the continuance
of the war.
Art. XIV. In naval wars any strong presumption that
either belligerent takes advantage of the benefits of neu-
trality, with any other view than the interest of the sick
and wounded, gives the other belligerent, until proof to
APPENDIX. 435
the contrary, the right of suspending the Convention as
regards such belligerent.
Should this presumption become a certainty, notice may
be given to such belligerent that the Convention is sus-
pended with regard to him during the whole continuance
of the war.
Art. XV. The present act shall be drawn up in a sin-
gle original copy which shall be deposited in the archives
of the Swiss Confederation.
The Convention proper was signed at Geneva, Switzer-
land, August 2, 1864. It was signed by representatives
of the following powers ; i. e., The Swiss Confederation,
Baden, Belgium, Denmark, Spain, France, Hesse, Italy,
the Netherlands, Portugal, Prussia, and Wurtemberg. The
ratifications of the contracting parties were exchanged at
Geneva on June 22, 1865. In accordance with the invi-
tation contained in the Ninth Article of the Convention,
the following powers acceded to the Convention at vari-
ous dates between 1864 and 1880. These were: Sweden,
December 13, 1864; Greece, January 5-17, 1865; Great
Britain, February 18, 1865; Mecklenburg-Schwerin, March
9, 1865; Turkey, July 5,1865; Wurtemberg, June 2, 1866;
Hesse, June 22, 1866; Bavaria, June 30, 1866; Austria,
July 21, 1866; Russia, May 10-22, 1867; Persia, Decem-
ber 5,1874; Roumania, November 18-30,1874; Salvador,
December 30, 1874; Montenegro, November 17-29, 1875;
Servia, March 24, 1876; Bolivia, October 16, 1879; Chili,
November 15, 1879; Argentine Republic. November 25,
1879; Peru, April 22, 1880.
The Additional Articles were agreed to and signed at
Geneva on October 20, 1868, by the duly accredited rep-
resentatives of the following powers; i. e., Great Britain,
Austria, Baden, Bavaria, Belgium, Denmark, France, Italy,
the Netherlands, the North German Confederation, Swe-
den, Norway, Switzerland, Turkey, and Wurtemberg. The
436 APPENDIX.
Convention was acceded to by the United States on
March 1, 1882.
In the published English text, from which this version
of the Additional Articles is taken, the following para-
graph appears in continuation of Article IX. It is not
found in the original French text adopted by the Geneva
Conference, October 20, 1868.
"The vessels not equipped for fighting which, during
peace, the government shall have officially declared to be
intended to serve as floating hospital ships, shall, however,
enjoy during the war complete neutrality, both as regards
stores, and also as regards their staff, provided their equip-
ment is exclusively appropriated to the special service on
which they are employed.
"By an instruction sent to the United States minister
at Berne, January 20, 1883, the right is reserved to omit
this paragraph from the English text, and to make any
other necessary corrections, if at any time hereafter the
Additional Articles shall be completed by the exchange of
the ratifications thereof between the several signatory and
adhering powers. The President of the United States, in
his proclamation announcing the accession of that power
to the Geneva Convention, reserves the promulgation of
the Additional Articles until the exchange of the ratifica-
tions thereof, between the several contracting states, shall
have been effected, and the said additional articles shall
have acquired full force and effect as an international
treaty." l
1 Statutes of the United States, 1882-1883, pp. 126-137.
APPENDIX C.
THE DECLARATION OF PARIS.
DECLARATION RESPECTING MARITIME LAW, SIGNED B?
THE PLENIPOTENTIARIES OF GREAT BRITAIN, AUSTRIA,
FRANCE, PRUSSIA, RUSSIA, SARDINIA, AND TURKEY, AS-
SEMBLED IN CONGRESS AT PARIS, APRIL 16, 1856.
THE Plenipotentiaries who signed the Treaty of Paris
of the 30th of March, 1856, assembled in conference,
Considering:
That Maritime Law, in time of war, has long been the
subject of deplorable disputes;
That the uncertainty of the law, and of the duties in
such a matter, gives rise to differences of opinion between
neutrals and belligerents which may occasion serious dif-
ficulties, and even conflicts;
That it is consequently advantageous to establish a uni-
form doctrine on so important a point;
That the Plenipotentiaries assembled in Congress at
Paris cannot better respond to the intentions by which
their governments are animated than by seeking to intro-
duce into international relations fixed principles in this
respect :
The above-mentioned Plenipotentiaries, being duly au-
thorized, resolved to concert among themselves as to the
means of attaining this object; and, having come to an
agreement, have adopted the following solemn declara-
tion:
1. Privateering is, and remains abolished.
2. The neutral flag covers enemy's goods, with the ex-
ception of contraband of war.
438 APPENDIX.
3. Neutral goods, with the exception of contraband of
war, are not liable to capture under the enemy's flag.
4. Blockades, in order to be binding, must be effective,
that is to say, maintained by a force sufficient really to
prevent access to the coast of the enemy.
The Governments of the undersigned Plenipotentiaries
engage to bring the present Declaration to the knowledge
of the states which have not taken part in the Congress
of Paris, and to invite them to accede to it.
Convinced that the maxims which they now proclaim
cannot but be received with gratitude by the whole world,
the undersigned Plenipotentiaries doubt not that the ef-
forts of their governments to obtain the general adoption
thereof will be crowned with full success.
The present Declaration is not and shall not be binding,
except between those Powers who have acceded, or shall
accede to it.
Done at Paris, April 16, 1856.
" This Declaration of the six powers of the Paris con-
ference was communicated to other states, and it was
stated, in a memorandum of the French minister of for-
eign affairs to the emperor, dated June 12, 1858, that
the following powers had signified their full allegiance to
the four principles, viz.: Baden, Bavaria, Bremen, Brazil,
the duchy of Brunswick, Chili, the Argentine Republic,
the Germanic Confederation, Denmark, the two Sicilies,
Equador, the Roman states, Greece, Guatemala, Hayti,
Hamburg, Hanover, the two Hesses, Ltibeck, Mecklen-
burg-Strelitz, Mecklenburg-Schwerin, Nassau, Oldenburg,
Parma, the Netherlands, Peru, Portugal, Saxony, Saxe-
Altenburg, Saxe - Coburg - Gotha, Saxe-Meiningen, Saxe-
Weimar, Sweden, Switzerland, Tuscany, and Wurtembcrg.
The executive government of Uruguay also gave its full
assent to all the four principles^ subject to the ratification
APPENDIX. 459
of the legislature. Spain and Mexico adopted the last
three as their own, but, on account of the first article, de-
clined acceding to the entire Declaration. The United
States adopted the second, third, and fourth propositions,
independently of the first, offering, however, to adopt that
also, with the following amendment, or additional clause,
" and the private property of subjects or citizens of a bel-
ligerent on the high seas, shall be exempt from seizure by
the public armed vessels of the other belligerent, except
it be contraband." The proposition thus extended has
been accepted by Russia, and some other states have sig-
nified their approbation of it. There is reason to hope
that all the maritime nations of Europe will eventually
adopt the extension. 1 The reasons advanced by the United
States for declining to accept the entire Declaration have
been fully discussed elsewhere. 8
1 Halleck, voL ii., p. 17. * Ante, p. 284.
APPENDIX D.
THE DECLARATION OF ST. PETERSBURG.
IN December, 1868, a conference of delegates, represent-
ing nineteen states, assembled at St. Petersburg, upon the
invitation of the Russian government, for the purpose of
considering the existing rules of war. This body, which
has become known as the International Military Commis-
sion, completed its labors on November 4-16 of the same
year. As a result of its deliberations, the following Dec-
laration was agreed to, and signed, by the duly author-
ized representatives of the states participating in the con-
ference. 1
DECLARATION.
"Considering that the progress of civilization should
have the effect of alleviating, as much as possible, the ca-
lamities of war;
That the only legitimate object which states should en-
deavor to accomplish during war is to weaken the military
force of the enemy;
That for this purpose, it is sufficient to disable the great-
est possible number of men;
That this object would be exceeded by the employment
of arms which uselessly aggravate the sufferings of dis-
abled men, or render their death inevitable;
1 Austria, Bavaria, Belgium, Denmark, France, Great Britain, Greece,
Italy, the Netherlands, Persia, Portugal, Prussia, the North German Con-
federation, Russia, Sweden and Norway, Switzerland, Turkey, and Wllr-
temberg.
APPENDIX.
That the employment of such arms would, therefore, be
contrary to the laws of humanity;
The contracting parties engage, mutually, to renounce,
in case of war among themselves, the employment, by
their military or naval forces, of any projectile of less
weight than four hundred grammes, 1 which is explosive,
or is charged with fulminating or inflammable substances.
They agree to invite all the states which have not taken
part in the deliberations of the International Military
Commission, assembled at St. Petersburg, by sending del-
egates thereto, to accede to the present engagement.
This engagement is obligatory only upon the contract-
ing or acceding parties thereto, in case of war between
two or more of themselves; it is not applicable with re-
gard to non-contracting powers, or powers that shall not
have acceded to it.
It will also -cease to be obligatory from the moment
when, in a war between contracting or acceding parties, a
non-contracting party, or a non-acceding party, shall join
one of the belligerents.
The contracting or acceding parties reserve to them-
selves the right to come to an understanding, hereafter,
whenever a precise proposition shall be drawn up, in view
of future improvements which may be effected in the
armament of troops, in order to maintain the principles
which they have established, and to reconcile the necessi-
ties of war with the laws of humanity."
1 Fourteen ounces avoirdupois.
APPENDIX E.
THE LAWS OF WAR ON LAND.
RECOMMENDED FOR ADOPTION BY THE INSTITUTE OF IN-
TERNATIONAL LAW AT ITS SESSION IN OXFORD, SEPTEM-
BER 9, 1880.
AT the Brussels session of the Institute, in 1879, a com-
mission of fifteen members was appointed to prepare a
code, or manual, of the rules of war on land. The task
of collecting the materials, and preparing the proposed
code, was intrusted to M. Gustave Moynier, of Geneva,
Switzerland, the president of the International Society for
the Relief of the Wounded in Time of War. The selec-
tion of M. Moynier for this purpose was a most fortunate
one in every respect; and he addressed himself to his task
with so much zeal and intelligence that, in February of
the following year, he was able to submit to his colleagues
a draft of the proposed manual. The rules prepared by
M. Moynier were based upon the following authorities:
(.) The Instructions for the Government of Armies in
the Field, prepared by Dr. Francis Lieber, at the request
of the United States government.
(b.) The Geneva Convention of August 22, 1864.
(c.) The Additional Articles of the Geneva Convention
of October 20, 1868.
(d.) The Declaration of St. Petersburg of November
4-16, 1868.
(e.) The Declaration of Brussels of 1874.
(/.) The Official Manuals recently adopted by the gov-
ernments of France, Russia, and Holland.
APPENDIX. 44.3
The code thus prepared was submitted to the members
of the commission for examination and criticism. As a
result the rules were entirely rewritten. A number of
modifications and amendments, suggested by the mem-
bers, were embodied in the work, which was again sub-
mitted to the commission for discussion and final action.
It was approved by that body, and recommended for ac-
ceptance. On September 9, 1880, it was unanimously
adopted by the Institute of International Law. By a
later resolution of the Institute, the executive committee
was instructed to bring the proposed rules to the notice of
the different governments of Europe and America, with
a view to their adoption, as a standard, to which their
laws and regulations on the subject should be made to
conform.
THE LAWS OF WAR ON LAND.
PART FIRST.
GENERAL PRINCIPLES.
1. The state of war does not admit of acts of violence,
save between the armed forces of belligerent states. In-
dividuals who form no part of a belligerent armed force
should abstain from such acts.
This rule implies a distinction between the individ-
uals who compose the armed force of a state and its
other citizens or subjects. A precise definition of the
term " armed force " is therefore necessary.
2. The armed force of a state includes:
1st. The army proper, or permanent military estab-
lishment, including the militia and reserve forces.
2d. The national guard, landstunn, free corps, and
other bodies which fulfil the three following con-
ditions; i. e.,
(a.) They must be under the direction of responsi-
ble chiefs.
444: APPENDIX.
(5) They must have a uniform, or distinguishing
mark, or badge, recognizable at a distance, and
worn by individuals composing such corps.
(c.) They must carry arms openly.
3d. The crews of public armed ships, and other ves-
sels used for warlike purposes.
4th. The inhabitants of non-occupied territory, who,
at the approach of the enemy, take arms openly
and spontaneously to resist an invader, even if they
have not had time to organize.
3. Every belligerent armed force must carry on its mil-
itary operations in accordance with the laws of war.
The only legitimate end that a state may have in
war is to weaken the military strength of the enemy.
4. The laws of war do not recognize in belligerents an
unlimited liberty as to the means of injuring the enemy.
They are to abstain from all needless severity, as well as
from all perfidious, unjust, or tyrannical acts.
5. Agreements made between belligerents during the
continuance of war, such as armistices, capitulations, and
the like, are to be scrupulously observed and respected.
6. No invaded territory is to be regarded as conquered
until the end of the war. Until that time the invader ex-
ercises, in such territory, only a de facto power, essentially
provisional in character.
PART SECOND.
APPLICATION OF GENEEAL PKINCIPLES.
I. HOSTILITIES.
A. RULES OF CONDUCT WITH REGABD TO INDIVIDUALS.
(a.) Inoffensive Populations.
The contest being carried on by " armed forces " only.
' 1. It is forbidden to deal harshly with inoffensive pop-
ulations.
APPENDIX. 445
(b.) Means of Injuring the Enemy.
8. It is forbidden,
(a.) To make use of poison, in any form whatever.
(b.) To make treacherous attempts upon the life of an
enemy; as, for example, by keeping assassins in
par, or by feigning to surrender.
(c) To attack an enemy by concealing the distinctive
signs of an armed force.
(d.) To use improperly the national flag, uniform, or
other distinctive signs of the enemy; the flag of
truce, or the distinctive signs of the Geneva Con-
vention.
9. It is forbidden,
(a.) To employ arms, projectiles, or materials of any
kind, calculated to cause needless suffering, or to ag-
gravate wounds notably projectiles of less weight
than four hundred grammes (fourteen ounces avoir-
dupois), which are explosive, or are charged with
fulminating or explosive substances.
(b.) To kill or injure an enemy who has surrendered,
or who is disabled; or to declare in advance that
quarter will not be given, even by those who do
not ask it for themselves.
(c.) The Sick and Wounded, and the Sanitary Service.
The following provisions, extracted from the Ge-
neva Convention, exempt the sick and wounded,
and the personnel of the sanitary service, from
many of the needless hardships to which they were
formerly exposed:
10. "Wounded or sick soldiers shall be collected togeth-
er and cared for, to whatever nation they may belong.
11. Commanders-in-chief shall have power to deliver,
immediately, to the outposts of the enemy, soldiers who
446 APPENDIX.
have been wounded in an engagement, when circum-
stances are such as to permit this to be done, and with
the consent of both parties. Those who are recognized,
after their wounds are healed, as incapable of serving,
shall be sent back to their own country. The others may
also be sent back, on condition of not again bearing arms
during the continuance of the war. Evacuations, together
with the persons under whose direction they take place,
shall be protected by an absolute neutrality.
12. Persons employed in hospitals and ambulances, com-
prising the staff for superintendence, medical service, ad-
ministration, transport of wounded, as well as chaplains,
and the duly accredited agents of relief associations, who
are authorized to assist the regular sanitary staff, shall
participate in the benefit of neutrality while so employed,
and so long as there remain any wounded to bring in or
to succor.
13. The persons designated in the preceding article
should, even after occupation by the enemy, continue to
attend, according to their needs, the sick and wounded in
the hospital, or ambulance, to which they are attached.
14. When they request to withdraw, the commander of
the occupying troops shall fix the time of departure,
which he shall only be allowed to delay, for a short time,
in case of military necessity.
15. Suitable arrangements should be made to assure to
neutralized persons, who have fallen into the hands of the
enemy, the enjoyment of suitable salaries.
16. An arm-badge (brassard) shall be worn by neutral-
ized individuals, but the delivery thereof shall be regu-
lated by military authority.
17. The commanding generals of the belligerent powers
should appeal to the humanity of the inhabitants, and
should endeavor to induce them to assist the wounded,
by pointing out to them the advantages that will result
APPENDIX. 44.7
from so doing. They should regard as inviolable those
who respond to this appeal.
(d.) The Dead.
18. It is forbidden to rob, or mutilate, the bodies of the
dead lying on the field of battle.
19. The bodies of the dead should not be buried until
they have been carefully examined, and all articles which
may serve to fix their identity, such as names, medals,
numbers, pocket-books, etc., shall have been secured. The
articles thus collected, from the bodies of the enemy's
dead should be transmitted to their army or government.
(e.) Who may be Made Prisoners of War.
20. Individuals who form a part of the belligerent
armed force of a state, if they fall into the hands of the
enemy, are to be treated as prisoners of war, in conformity
with articles 61-78 of these instructions. The same rule
is observed in the case of messengers who carry official
despatches openly; and towards aeronauts charged with
observing the operations of an enemy, or with the main-
tenance of communications between the various parts of
an army, or theatre of military operations.
21. Individuals who accompany an army, but. who are
not a part of the regular armed force of the state, such
as correspondents, traders, sutlers, etc., and who fall into
the hands of the enemy, may be detained for such length
of time only as is warranted by strict military necessity.
(/.) Spies.
22. Spies, captured in the act, cannot demand to be
treated as prisoners of war.
23. An individual may not be regarded as a spy, however,
who, belonging to the armed force of either belligerent,
penetrates, without disguise, into the zone of military
448 APPENDIX.
operations of the enemy. Nor does the term apply to
aeronauts, or to couriers, or messengers, who carry openly,
and without concealment, the official dispatches of the
enemy.
24. No person, charged with being a spy, shall be pun-
ished for that offence, until the fact of his guilt shall have
been established before a competent military tribunal.
25. A spy who succeeds in quitting the territory occu-
pied by an enemy, incurs no penalty for his previous of-
fence, should he at any future time fall into the hands of
that enemy.
(g) Flags of Truce.
26. The bearer of a flag of truce, who, with proper au-
thority from one belligerent, presents himself to the other,
for the purpose of communicating with him, is entitled to
complete inviolability of person.
27. He may be accompanied by a drummer or trumpeter,
by a color-bearer, and, if need be, by a guide and inter-
preter, all of whom shall be entitled to a similar inviola-
bility of person.
28. The commander to whom a flag is sent, is not
obliged to receive the flag under all circumstances.
29. The commander who receives a flag has a right to
take such precautionary measures as will prevent his
cause from being injured by the presence of an enemy
within his lines.
30. If the bearer of a flag of truce abuse the trust re-
posed iu him, he may be temporarily detained, and, if it
be proven that he has taken advantage of his position to
abet a treasonable act, he forfeits his character of invio-
lability.
APPENDIX. 449
B. RULES OP CONDUCT WITH REGARD TO THINGS.
(a.) Means of Injuring the Enemy. Bombardments.
Certain precautions are made necessary by the rule
that a belligerent must abstain from useless severity.
In accordance with this principle,
31. It is forbidden,
(a.) To pillage, even places taken by assault.
(b.) To destroy public or private property, unless
such destruction be commanded by urgent military
necessity,
(c.) To attack, or bombard, open or undefended towns.
32. The commander of an attacking force, save in cases
of open assault, shall, before undertaking a bombardment,
make due effort to give notice of his intention to the local
authorities.
33. In case of bombardment all needful measures shall
be taken to spare, if it be possible to do so, buildings de-
voted to religion and charity, to the arts and sciences,
hospitals, and depots of sick and wounded. This on con-
dition, however, that such places be not made use of, di-
rectly or indirectly, for purposes of defence.
34. It is the duty of the besieged to designate such
buildings by suitable marks or signs, indicated, in ad-
vance, to the besieger.
(b.) Sanitary Establishments.
The arrangements for the relief of the wounded,
which are made the subject of article 10 et seq. of the
Geneva Convention, would be inadequate to their pur-
pose, were not sanitary establishments granted equal
protection. Hence, in accordance with the rules of the
Geneva Convention,
85. Ambulances and military hospitals are recognized
29
450 APPENDIX.
as neutral, and, as such, are to be protected by belligerents,
so long as any sick or wounded remain therein.
36. The same rule applies to buildings, or parts of build-
ings, in which the sick or wounded are gathered together,
or cared for.
37. The neutrality of hospitals and ambulances ceases
if they are guarded by a military force. This does not
preclude the presence of an adequate police force.
38. As the equipment of military hospitals remains sub-
ject to the laws of war, persons attached to such hospitals
cannot, in withdrawing, carry away any articles but such
as are their private property. Under the same circum-
stances, an ambulance shall, on the contrary, retain its
equipment.
39. Under the circumstances foreseen in the above para-
graphs, the term ambulance is applied to field hospitals, and
other temporary establishments, which follow the troops
on the field of battle to receive the sick and wounded.
40. A distinctive and uniform flag is adopted for am-
bulances, hospitals, and evacuations. It bears a red cross
on a white ground. It must, on all occasions, be accom-
panied by the national flag.
II. OCCUPIED TERRITORY.
A. DEFINITION.
41. Territory is regarded as occupied when, as the con-
sequence of its invasion by the enemy's forces, the state
from which it has been taken has ceased, in fact, to exer-
cise there its regular authority, and the invading state,
alone, finds itself able to maintain order therein. The
limits within which this state of affairs exists determine
the extent and duration of the occupation.
B. RULES OP CONDUCT WITH RESPECT TO PERSONS.
42. It is the duty of the occupying military authority
APPENDIX.
to inform the inhabitants, at the earliest practicable mo-
ment, of the powers that he exercises, as well as to define
the limits of the occupied territory.
43. The occupying authority should take all due and
needful measures to assure order and public tranquillity.
44. To that end the invader should maintain the laws
in force in the territory in time of peace, and should not
modify, suspend, or replace them, unless it becomes abso-
lutely necessary to do so.
45. The administrative officials and civil employees, of
every grade, who consent to continue in the performance
of their duties, should be supported and protected by the
occupying authority. Their appointments are always
revocable, and they have the right to resign their places
at any time. They should be subjected to penalties only
when they fail to perform duties freely accepted by them,
and should be given over to justice only when they have
betrayed them.
46. In case of urgency, the invader may demand the
co-operation of the inhabitants, to enable him to provide
for the necessities of local administration.
47. The population of an invaded district cannot be
compelled to swear allegiance to the hostile power; but
individuals who commit acts of hostility against the occu-
pying authority are punishable.
48. The inhabitants of an occupied territory, who do
not submit to the orders of the occupying authority, may
be compelled to do so. The invader, however, cannot
compel the inhabitants to assist him in his works of at-
tack or defence, or to take part in military operations
against their own country.
49. Family honor and rights, the lives of individuals,
as well as their religious convictions, and the right of re-
ligious worship should be respected.
452 APPENDIX.
C. RULES OF CONDUCT WITH REGARD TO PROPERTY.
(a.) Public Property.
Although the authority of the invader replaces that
of the government of the occupied territory, his power
is not absolute. So long as the fate of the territory
remains in suspense that is, until the peace the in-
vader is not free to dispose of property which still be-
longs to the enemy, and which is not of direct use to
him in his military operations. From these principles
the following rules are deduced:
50. The occupying authority may seize only the cash,
public funds, and bills due or transferable, belonging to
the state in its own right, depots of arms and supplies,
and, in general, the movable property of the state, of such
character as to be useful in military operations.
51. Means of transportation (railways, boats, etc.), as
well as telegraph lines and landing cables, can only be ap-
propriated to the use of the invader. Their destruction
is forbidden, unless it be commanded by military neces-
sity. They are to be restored, at the peace, in the condi-
tion in which they are at that time.
52. The invader can only act in the capacity of a pro-
visional administrator in respect to real property; such
as buildings, forests, agricultural establishments, etc., be-
longing to the enemy's state. He should protect these
properties and see to their maintenance.
53. The property of communes, and that of establish-
ments devoted to religious worship, and to the arts and
sciences, cannot be seized. All destruction, or intentional
defacement of such establishments, of historic monuments
or archives, or of works of science or art, is formally pro-
hibited, save when commanded by urgent military neces-
.sity.
APPENDIX. 453
(b.) Private Property.
If the powers of the invader are limited with respect
to the public property of the enemy's state, icith greater
reason are they limited icith respect to the private
property of individuals.
54. Private property, whether belonging to individuals
or corporations, is to be respected, and can be confiscated
only under the limitations contained in the following ar-
ticles.
55. Means of transportation (railways, boats, etc.), tele-
graphs, factories of arms and munitions of war, although
belonging to private individuals or 'corporations, may be
seized by an invader, but must be restored at peace; if
possible, with suitable indemnities.
56. Impositions in kind (requisitions), levied upon com-
munes, or the residents of invaded districts, should bear di-
rect relation to the generally recognized necessities of war,
and should be in proportion to the resources of the district.
Requisitions can only be made, or levied, with the author-
ity of the commanding officer of the occupied district.
57. The invader may levy, in the way of dues and im-
posts, only such as are already established for the benefit
of the state revenues. He employs them to defray the
expenses of administration of the occupied territory, con-
tributing in the same proportion in which the legal gov-
ernment was bound.
58. The invader cannot levy extraordinary contributions
of money, save as an equivalent for fines, or imposts not
paid, or for payments not made in kind. Contributions
in money can only be imposed by the order, and upon the
responsibility, of the general-in-chief, or that of the supe-
rior civil authority established in the occupied territory;
and then, as nearly as possible, in accordance with the
rule of apportionment and assessment of existing imposts.
454 APPENDIX.
59. In the apportionment of burdens relating to the
quartering of troops, and in the levying of requisitions
and contributions of war, account is to be made of the
charitable zeal displayed by the inhabitants in behalf of
the wounded.
60. Impositions in kind, when they are not paid for in
cash, and contributions of war, are authenticated by re-
ceipts. Measures should be taken to assure the regularity
and bonafide character of these receipts.
III. PRISONERS OF WAR.
The confinement of prisoners of war is not in the
nature of a penalty for crime; neither is it an act
of vengeance. It is a temporary detention only, en-
tirely without penal character. In tlie following pro-
visions, therefore, regard has been had to the consider-
ation due them as prisoners, and to the necessity of
their secure detention.
61. Prisoners of war are the prisoners of the captor's
government, and not of the individuals or corps who capt-
ured them.
62. They are subject to the laws and regulations in
force in the army of the enemy.
63. They must be treated with humanity.
64. All articles in their personal possession, arms ex-
cepted, remain their private property.
65. Every prisoner of war is obliged to disclose, when
duly interrogated upon the subject, his true name and
grade. Should he fail to do so, he may be deprived of
all, or a part, of the privileges accorded to prisoners of
his rank and station.
66. Prisoners of war may be confined in towns, for-
tresses, camps, or other places, with an obligation not to
go beyond certain specific limits; but they may only be
imprisoned as an indispensable measure of security.
APPENDIX. 455
67. Every act of insubordination, on the part of a pris-
oner of war, authorizes the resort to suitable measures of
severity on the part of the government in whose hands
he is.
68. Prisoners of war attempting to escape may, after
having been summoned to halt or surrender, be fired upon.
If an escaped prisoner be recaptured, before being able
to rejoin his own army or to quit the territory of his cap-
tor, he is only liable to disciplinary penalties; or he may
be subjected to a more rigorous confinement. If, after
having successfully effected his escape, he is again made
a prisoner, he incurs no penalty for his previous escape.
If, however, the prisoner so recaptured, or retaken, has
given his parole not to attempt to escape, he may be de-
prived of his rights as a prisoner of war.
69. The government having prisoners of war in its
hands, is obliged to support them. If there be no agree-
ment between the belligerents upon this point, prisoners
of war are placed, in all matters regarding food and cloth-
ing, upon the peace footing of the troops of the state
which holds them in captivity.
70. Prisoners cannot be compelled to take any part
whatsoever in operations of war. Neither can they be
compelled to give information concerning their army or
country.
71. They may be employed upon public works that
have no direct connection with the captor's military op-
erations; provided, however, that such labor is not detri-
mental to health, nor humiliating to their military rank,
if they belong to the army; or to their official or social
position, if they are civilians, not connected with any
branch of the military service.
72. In the event of their being authorized to engage in
private industries, their pay for such services may be col-
lected by the authority in charge of them. The sums so
456 APPENDIX.
received may be employed in bettering their condition,
or may be paid to them, at their release, subject to deduc-
tion, if that course be deemed expedient, of the expense
of their maintenance.
IV. TERMINATION OF CAPTIVITY.
The right of detaining individuals in captivity ex-
ists only during the continuance of hostilities. Hence :
73. The captivity of prisoners of war ceases, as a matter
of right, at the conclusion of peace; but their liberation
is then regulated by agreement between the belligerents.
74. Captivity also ceases, in so far as sick or wounded
prisoners are concerned, so soon as they are found to be
unfit for military service. It is the duty of the captor, un-
der such circumstances, to send them back to their country.
75. During the continuance of hostilities, prisoners of
war may be released in accordance with cartels of ex-
change, agreed upon by the belligerents.
76. Without formal exchange, prisoners may be liber-
ated on parole, provided they are not forbidden, by their
own government, to give paroles. In such a case they
are obliged, as a matter of military honor, to perform,
with scrupulous exactness, the engagements which they
have freely undertaken, and which should be clearly spec-
ified. On its part, their own government should not de-
mand, or accept from them, any service contrary to, or
inconsistent with, their plighted word.
77. A prisoner of war cannot be constrained to accept
a release on parole. For a similar reason, the enemy's
government is not obliged to accede to the demand of a
prisoner of war to be released on parole.
78. Every prisoner of war, liberated on parole, who is
recaptured in arms against the government to which he
has given such parole, may be deprived of his rights and
privileges as a prisoner of war; unless, since his liberation,
APPENDIX. 457
he has been included in an unconditional exchange of
prisoners.
V. TKOOPS INTERNED IN NEUTEAL TERRITORY.
It is universally admitted that a neutral state can-
not, without compromising its neutrality, lend aid to
either belligerent, or permit them to make use of its
territory. On the other hand, considerations of hu-
manity dictate that asylum should not be refused to
individuals who take refuge in neutral territory to es-
cape death or captivity. From these principles the
following provisions are deduced. They are calcu-
lated to reconcile, to some extent, the opposing interests
involved.
79. It is the duty of a neutral state, within whose terri-
tory commands, or individuals, have taken refuge, to in-
tern them at points as far removed as possible from the
theatre of war. It should pursue a similar course toward
those who make use of its territory for warlike opera-
tions, or to render military aid to either belligerent.
80. Interned troops may be guarded in camps, or for-
tified places. The neutral state decides whether officers
are to be released, on parole, by taking an engagement
not to quit neutral territory without authority.
81. In the event of there being no agreement with the
belligerents concerning the maintenance of interned troops,
the neutral state shall supply them with food and cloth-
ing, and the immediate aid demanded by humanity. It
also takes such steps as it deems necessary to care for the
arms and other public property brought into its territory
by the interned troops. When peace has been concluded,
or sooner, if possible, the expenses occasioned by the in-
ternment are reimbursed to the neutral state, by the bel-
ligerent state to whom the interned troops belong.
82. The provisions of the Geneva Convention of August
458 APPENDIX.
22, 1864 (Articles 10-18, 35-40, 59 and 74 above given),
are applicable to the sanitary staff, as well as to the sick
and wounded, who take refuge in, or are conveyed to,
neutral territory.
83. Evacuations of sick and wounded, not prisoners of
war, may pass through neutral territory, provided the
personnel and material accompanying them are exclusive-
ly sanitary. It is the duty of the neutral state, through
whose territory the evacuation is made, to take such
measures of safety and necessary control as it may deem
necessary to the rigorous performance of its neutral duty.
PART THIRD.
PENAL SANCTION.
If any of the foregoing rules be violated, the offend-
ing parties should be punished, after a judicial hear-
ing, by the belligerent in whose hands they are.
84. Offenders against the laws of war are liable to the
punishments specified in the penal, or criminal, law.
This mode of repression, hoicever, is only applicable
when the person of the offender can be secured. In the
contrary case, the criminal law is powerless, and, if the
injured party deem the misdeed so serious in character
as to make it necessary to recall the enemy to a respect
for law, no other resource remains than a resort to re-
prisals. Reprisals are an exception to the general
rule of equity, that an innocent person ought not to
suffer for the guilty. They are also at variance with
the rule that each belligerent should conform to the
rules of war, without reciprocity on the part of the en-
emy. This necessary rigor, however, is modified, tc
some extent, by the following restrictions:
85. Reprisals are formally prohibited in all cases in
which the injury complained of has been repaired.
APPENDIX. 459
86. In all cases of serious importance, in which reprisals
appear to be absolutely necessary, they shall not exceed,
in kind or degree, nor in their mode of application, the
exact violation of the law of war committed by the ene-
my. They can only be resorted to with the express au-
thority of the general-in-chicf. They must conform, in
all cases, to the laws of humanity and morality.
This Manual is the latest, as it is in many respects the
best, of the many attempts that have been made to frame
a body of rules for the guidance of belligerents in war.
In common with those that have preceded it, it possesses
certain advantages which may be summarized as follows:
(a.) It expresses, with great accuracy and precision, the
principles of International Law that underlie the rules of
war; and states those rules, in considerable detail, as they
existed at the date of its preparation.
(b.) In stating them, it places upon each the most favor-
able construction that it is capable of receiving erring,
if at all, upon the side of humanity.
(c.) Its publication tends, to a certain extent, to popular-
ize knowledge upon a subject about which too little is known.
(d.) By drawing public attention to the existing meth-
ods of civilized war, it emphasizes its inevitable hardships
and severities, encourages investigation and criticism, and
affords an opportunity for their further amendment in
the direction of greater humanity.
On the other hand, it is open to serious objections:
(a.) No code, or manual, can cover or include all the
cases, or novel combinations of circumstances, that are
likely to arise in war.
(5.) The interests of modern states, and so their military
policies, are so diverse as to make it impossible for any
rule, or set of rules, to apply to all states, or even to any
460 APPENDIX.
considerable number of them, in the conduct of their mil-
itary operations. This is illustrated by the divergent,
and in many cases opposing, views upon the subjects of
occupied territory, the employment of levees en masse,
and the like, which are held by states of which England
and Russia are the extreme types.
(c.) The rules are applied, in time of war, by the com-
manding generals of opposing armies in the field. When-
ever a question of doubtful application arises, the rules
are interpreted and applied to the case in point not by a
dispassionate tribunal but by a party to the issue. His
decision must, from the necessities of the case, be based
upon a partial and one-sided representation of the facts
in issue; and his ruling can hardly fail to be influenced,
to an appreciable extent, by considerations of military
policy and self-interest.
(d.) An invariable defect in most endeavors of this
kind is that they attempt too much, and undertake to
frame rules upon subjects as to which there is, as yet, no
unanimity of opinion among modern states. A rule of
International Law, to receive general acceptance, must be
based upon general consent. If the policy of states varies
as to a particular usage, it is impossible to frame a rule,
as to that usage, which all states will agree to observe.
The rules of the Geneva Convention, and those of the
Declaration of St. Petersburg, have received practically
unanimous recognition, because they had to do with prac-
tices concerning which all states were of the same opinion.
The views held by different states as to the rights of mil-
itary occupation and the government of occupied terri-
tory, and upon the subjects of requisitions and contribu-
tions of war, are so diverse, as to make it impossible to
formulate a rule by which any considerable number of
them will agree to be bound in the conduct of their mil-
itary operations.
INDEX.
Adjustment of international disputes,
186.
Alabama, case of the, 315.
Alabama Claims, settlement of, 327.
Aliens, definition of the term, 112.
Classification of, 112.
Treatment of, in former times, 1 10.
" in modern times, 113.
Restrictions upon, 115.
Allegiance, 100, 101.
Doctrine of indelible, 110.
Change of, how effected, 100.
(See Naturalization, Expatria-
tion.)
Alliances, 175.
Offensive and defensive, 176.
Equal and unequal, 176.
Ambassadors, 141.
Origin of the modern institution,
141.
The right of legation, 142.
Eight of sending and receiving,
142.
Duty to receive, not absolute, 142.
Classification of diplomatic agents,
143.
Rank of ambassadors, 144.
Titles of, 145.
Manner of sending and receiving,
146.
Reception of ambassadors, 146.
Duties of ambassadors, 147.
Diplomatic language, 147.
Functions of, how suspended and
terminated. 148.
Privileges and immunities of am-
bassadors, 149.
The fiction of exterritoriality, 150.
Immunity from criminal jurisdic-
tion, 151.
Immunity from civil jurisdiction,
151.
Immunity of hotel, 152.
Privilege of religious worship,
153.
Exemption from customs dues,
etc., 153.
Amicable adjustment of disputes, 186.
Arbitration, 191.
A means of adjusting international
disputes, 191.
A preliminary treaty necessary,
191.
Character and composition of tri-
bunal, 191.
Rules of procedure, how provided,
192.
Decision of tribunal, its character,
192.
Its binding force, 192.
Validity of, 192.
Asylum, right of, in war, 299.
Balance of power, 77.
Interference in behalf of, 77.
De Marten's statement of the prin-
ciple of, 80.
Vattel's statement of the principle
of, 81.
Senior's limitation of the right of
interference, 81.
Belligerents, 200.
Intercourse of, in war, 237.
Obligation of, to respect the rules
of war, 200.
Binding force of treaties, 169.
Bliss, James, case of the, 188.
Blockades, 366.
Right of, a belligerent right, 366.
What places may be blockaded,
366.
Valid blockades, 367.
How established and notified, 367.
(a.) By proclamation, 368.
462
INDEX.
(6.) By notification and endorse-
ment, 368.
(c.) By proclamation and noti-
fication, 368.
Penalty for breach of blockade,
370.
Duration of, 371.
" in breach by egress,
372.
Termination of blockades, 372.
Pacific blockades, 373.
Booty, 230.
Canon law, origin of, 11.
Capitulations, 239.
Captured property in war, 230.
On land (see Contributions and
Requisitions), 230.
On the sea (see Maritime Capt-
ure), 259.
Cartels, 239.
Causes of war, 201.
Ceremonial
Diplomatic, 89, 92, 146.
Maritime, 87.
Military, 91.
Observance of national anniver-
saries, 90.
Visits of ceremony, 91.
International agreement as to sa-
lutes, 90.
Charges d' Affaires, 145.
Chesapeake, case of the, 307.
Chivalry, effect of the institution upon
International Law, 10.
Citizen, definition of the term (see
Subject), 98.
Classification of citizens. 99.
(.) Native-born, 99.
(b.) Naturalized, 100.
Duty of allegiance, 98.
Right to protection, 98.
Citizenship, how determined, 98.
How distinguished from domicile,
117.
Civil wars, 199.
Closed seas, jurisdiction over, 37.
Combatants, 232.
Comity, duty of, 94.
Confederations, 32.
Test of the relative strength of,
32.
Rule for determining the strength
of, 33.
Conflict of international rights, 186.
Methods of adjustment, 186.
(.) Amicable adjustment by
interested states, 186.
Duty of moderation, 189.
(b.) Mediation, 190.
(c.) Arbitration, 191.
Mediation and arbitration com-
pared, 192.
Conflict of laws (see Private Inter-
national Law), 132.
Consolato del Mare, 6.
Constitutional governments, 29.
Consular jurisdiction, 161.
How obtained, limits upon, 161.
Amount of, exercised by United
States consuls, 162.
Consuls, 154.
Origin of the consular function,
154.
Classification of consular employ-
ees, 157.
Duties of, 156.
Privileges and immunities of, 157.
Method of appointment, the exe-
quatur, 157, 159.
Method of appointment in the
United States, 160.
Withdrawal of exequatur, 159.
Continuous voyages (see Contraband),
351.
Contraband of war, 336.
Origin of the practice, 336.
Definition of, 338.
Rules of. affect chiefly the acts ot
individuals, 339.
Character of contraband trade,
339.
Rules for determining contraband
of war, 340.
Difficulty of framing, cause of
the difficulty, 340.
Question decided by prize courts,
341.
Field's proposed rule, 341.
Rules of the Supreme Court of
the United States, 342.
Application of, 343.
Destination of ships and goods,
how determined, 345.
Doctrine of continuous voyages
(see cases of the Springbok and
Peterhoff), 345.
Difference between old and new
INDEX.
463
rules, probable consequences,
352.
Penalty for contraband trade,
353.
Rule as to contraband goods, 353.
Rule as to the ship, 354.
Rule as to innocent cargo, 354.
Release of neutral ship upon sur-
rendry of contraband cargo,
355.
Duration of penalty, 354.
Neutral conveyance of enemy's
troops and despatches, 356.
Definition of terms, 356.
Destination important, 357.
Cases of the Friendship and Greta,
357.
Presumption in the case of hos-
tile despatches, 358.
Despatches of a belligerent gov-
ernment to its ambassadors and
consuls in neutral states. 358.
Conveyance of mails in the ordi-
nary course of business, 359.
Case of the Trent, 360.
Occasional contraband, 362.
Pre-emption, 364.
Contributions of war, 230.
Convoy, 383.
Council of Lyons, 13.
Councils of the Church (see (Ecumen-
ical Councils), 13.
Crimes
Committed in foreign territory,
jurisdiction over, 125.
Committed on the high seas, ju-
risdiction over, 125.
Criminal jurisdiction, right of, 123.
Views held as to, by various
states, 124.
Custom, as a source of International
Law, 25.
Customs of Amsterdam, 7.
Decisions
Of boards of arbitration as a
source of International Law, 20.
Of courts as a source of Interna-
tional Law, 23.
Declaration
Of Paris, 284. (For text of the
Declaration, see Appendix C,
437.)
Of St. Petersburg, 440.
Declaration of war
Ancient and modern usage with
respect to, 203.
right of, in whom vested. 201.
Despatches of enemy, carriage of, by
neutral, 356.
Definition of, 357.
Destination of, important in de-
termining liability of carrier,
357.
Destination, in contraband trade, how
determined, 345.
Diplomatic agents (see Ambassadors),
141.
Correspondence of, as a source of
International Law, 19.
Language, 147.
Divisions of International Law. 24.
1. The natural law of nations,
25.
2. The positive law of nations,
25.
(a.) The conventional law of
nations, 25.
(6.) The customary law of na-
tions, 25.
Domicile, 116.
Distinction between domicile and
citizenship, 117.
Rules of, 118.
Effects of a state of war, 205.
Equality of states, 31.
Exchange of prisoners of war, 235.
Exterritoriality, 59, 150.
(a.) Application to ambassadors,
67, 150.
(b.) Application to armies in tran-
sit, 63.
(c.) Application to consuls in the
East, 67.
(A) Application to ships of war,
60.
(e.) Application to sovereigns, etc.,
65.
Extradition, 123, 126.
Difference of view as to criminal
jurisdiction, 124.
Methods of, 126.
Conditions of, 127.
Treaties of the United States on
the subject of, 128.
Interstate, in the United States,
129.
464
INDEX.
Feudal system, 8.
Effects of, on growth of Interna-
tional Law, 10.
Flags of truce, 238.
Florida, case of the, 308.
Foreign judgments, effects of, 138.
Conditions respecting, 139.
Franconia, case of the, 41.
" Free ships, free goods," origin of the
rule of, 281.
Friendship, case of the, 357.
Geneva arbitration, 327.
Government defined, 28.
Forms of, 29.
Right of a state to change form
of, 33.
Greeks, International Law among the.3.
Greta, case of the, 357.
Grotius, influence of, upon the science
of International Law, 16.
Theory of, respecting Internation-
al Law, 17.
Guerillas, 214.
Guidon de la Mar, 5.
Hanseatic League, constitution of the, 7.
Heinrich's case, 102.
High seas, 42.
Claims to dominion over portions
of the, 43.
Freedom of the, 43.
Humanity, duty of, 93.
Immunities of ambassadors, 150.
Imperfect rights, 92.
Impressment of seamen, 380.
Independence of states, principle of, 31.
Grotius's view of, 17.
Intercourse, duty of, 94.
Not a right, 95.
Between belligerents in war, 237.
Interference, when justified, 74.
(a.) To assist a state in suppress-
ing rebellion, 75.
(6.) In accordance with treaty
stipulations, 76.
(c.) In self-defence, 77.
(d) In behalf of the balance of
power, 77.
International Law, 2.
Difference between International
and Municipal Law, 2.
Divisions of, 24.
History of, 3.
Sources of, 18.
Parties to, 26.
Interpretation of treaties (see Treaties),
180.
Jugements of Oleron, 5.
Jurisdiction of states, 54.
Where exercised, 54.
In whom vested, 55.
Where exclusive, 56.
Exterritorial, when exercised, 56.
Consular, 161.
Jurisdictional powers of government, 54,
Classification of, 30, 54.
(a.) Legislative, 55.
(6.) Executive, 56.
(c.) Judicial, 56.
Jus Feciale, 4.
Jus Gentium, 17.
Laconia, case of the, 188.
Language of diplomacy, 147, 170.
Law in general, 1.
International, 2.
Municipal, 1.
Distinction between International
and Municipal, 2.
Laws of Antwerp, 7.
Laws of war, 208.
On land, 218.
On the sea, 226.
Legislation, right of, 142.
Licenses to trade, in war, 240.
By whom issued, 240.
Conditions of, 240.
Lieber, Dr. Francis, rules of war pre-
pared by (Appendix A), 395.
Marine League, the, jurisdiction over,
40.
Maritime capture, 259.
Maritime ceremonial, 87.
Maritime commerce, effect of, upon the
development of International Law,
45.
Maritime Law, early codes of.
(a.) The Consolato del Mare, 6.
(&.) The Constitutions of the Han-
seatic League, 7.
(c.) The Customs of Amsterdam,?.
(d.) The ,Guidon de la Mar, 5.
(e.) The Jugements of Oleron, 5,
(/) The Laws of Antwerp, 7.
INDEX.
465
(y.~) The Maritime Law of "VTis-
buy, 7.
Maritime ordinances of Louis XIV., 6.
Martial law, 247.
Measures of redress, 193.
(a.) Retorsion, 194.
(b.) Reprisals, 195.
Mediation, 190.
Methods of adjusting international dis-
putes, 186.
Military ceremonial on land, 91.
Most-favored-uation clause (see Trea-
ties), 183.
Mutual respect, duty of, 83.
To whom shown (see Maritime
and Military Ceremonial), 85.
Nation, definition of the term, 28.
Nation and state, not synonymous, 28.
National character, 98.
How determined in the case of an
individual, 98.
Change of, how effected (see Nat-
uralization and Expatriation),
100.
Naturalization, 100.
Conditions of, 101.
How effected, 100.
Heinrich's case, 102.
Largomarsini's case, 105.
Koszta's case, 103.
Treaties of the United States on
the subject of, 107.
Navigation
Of coast sea, 40.
Of closed seas, 37.
Of boundary rivers, 44.
Of straits, 37.
Of the high seas, 42.
Neutral, or neutral state, how defined.
276.
Duty of, in time of war, 297.
Responsibility of, in respect to the
acts of its subjects, 302.
Neutral duties, 297.
Duty of strict neutrality, 297.
Asylum to troops and ships, 299.
Responsibility of a neutral state
for the acts of its subjects, 302.
(a.) View of England and the
United States, 303.
(b.) View of Continental states.
305. (See case of the Ala-
bama, 315.)
30
Neutral rights, 306.
Immunity of neutral territory from
acts of belligerency, 300, 306. -
Case of the Chesapeake, 307.
Case of the Florida, 308.
Neutrality, 276.
Origin and development of the
neutral theory, 276.
Rule of the ConsolatodelMare,279.
Principle of "free stiips.free goods,"
28i.
Rule of the Declaration of Paris,
284.
Claims to exclusive dominion of
the sea, 288.
Colonial monopolv, 291.
Rule of 1756, 292.'
Development of the theory among
the non-maritime states of Eu-
rope, 292.
Influence of England, 293.
General acceptance of the modern
theory, its later history, 294.
Gradations of neutrality, 295.
Permamcnt, 296.
Armed, 296.
Strict, 297.
Neutrality laws. 309.
Neutral duty of a state determined
by Internationa], not Municipal
Law, 310.
Laws of England on the subject
of, 311.
Laws of the United States on the
subject of, 313.
Laws of other states on the sub-
ject of, 314.
Non-combatants in war, treatment of,
233.
Notice of a state of war, to whom giv-
en, 204.
Occasional contraband, 362.
Occupation, military, 244.
Different views as to, 245.
Present view of, 246.
Martial law, or die state of sieg '.
247.
Right of military occupation de-
fined. 247.
(Ecumenical councils, 13.
Offences against the knvs of war, 241.
Oriental monarchies, existence of In-
ternational Law among, 3.
466
INDEX.
Pacific blockades, 373.
Paroles, 236.
Parties to International Law, 26.
Peace, treaties of, 255.
Perfect rights or duties of states, 70.
Definition of a perfect right, 70.
Classification of, 70.
The duty of mutual respect, 83.
The duty of non-interference, 74.
The enforcement of treaty stipula-
tions, 74.
Interference, when justified, 74.
Protection of subjects, 72.
The right of reputation, 73.
The right of self-preservation, 70.
PeterhofF, case of the, 349.
Pope, decisions of the, in international
controversies, 13.
Pope and emperor, position of, in the
Middle Ages, 11.
Postliminy, rules of, 266.
Power of belligerents over neutral trade,
338.
Pre-emption, 364.
Prisoners of war, 233.
Private International Law, definition,
132.
Relations of states and individuals
at, 132.
Practice of, based upon comity, or
consent, 132.
Origin of the practice, 133.
Subjects treated of in, 136.
Limitations upon the practice of,
137.
' Effect of foreign judgments, 138.
Condition of reciprocity, 138.
Why produced before the courts
of a state, 139.
When effective, 139.
Practice of states in the matter of
foreign judgments, 139.
Prize in war, 261.
Prize courts, 268.
Property, treatment of, in war, 226.
Property of the enemy, public and pri-
vate, treatment of in war, 226.
Protocol, 183.
Quarter, in war, 222.
Refusal of, not warranted, 222.
Ransom of captured vessels, 233.
Ransom contracts. 234.
Rebellions, 199.
Recapture of prizes at sea, 266.
Recez, 183.
Reprisals (see Means of Redress), 195.
Requisitions, 228.
Responsibility of a neutral state for the
acts of its subjects, 302.
Retaliation in war, 251.
Limitations upon the practice, 252.
Retorsion (see Means of Redress), 194.
Revival of commerce, effect of upon the
development of International Law, 5.
Rhodian laws, 7.
Right of search, 375.
Rights of sovereign states, 28.
Perfect rights, 70.
Imperfect rights, 92.
River navigation, right of, 44.
Cases of the Main, Meuse, Moselle,
Neckar, Rhine, and Scheldt, 44.
Cases of the Elbe, Douro, Po, Vis-
tula, and Weser, 45.
Case of the Danube, 45.
Case of the Mississippi, 46.
Case of the St. Lawrence, 49.
Rivers as boundaries, 35.
Navigation of, not a perfect right,
44.
Roman Church, Influence of, upon the
development of International Law, 1 1.
Roman empire, 11.
Roman Law, influence of, upon Inter-
national Law, 19.
As a source of International Law,
19.
Early misconception as to, 21.
Jus Feciale, 21.
Jus Gentium, 20."
Law of the XII. Tables, 20.
Rules of, as to river boundaries, 35.
Romans, International Law among the,
4.
Rules of war on land.
(a.) Dr. Lieber's Rules for the
Government of Armies in the
Field (Appendix A), 395.
(6.) The Declaration of St. Peters-
burg (Appendix D), 440.
(c.) Rules of the Institute of In-
ternational Law (Appendix E)<
442.
Safe-conducts, 239.
Safeguards, 239.
INDEX.
467
Salvage (see Recapture), 267.
Sea, claims to dominion over portions
of the, 43.
Jurisdiction over coast (see the
Marine League), 40.
Freedom of the, 43.
Sea laws, 5.
Search, the belligerent right of, 375.
Definition of the right, 375.
When and where exercised, 375.
Manner in which the right is ex-
ercised, 37G.
Duty of boarding party, 377. (See
Bight of Visitation, 379.)
Of merchant vessels in time of
peace, when authorized, 386.
(a.) To execute revenue laws,
386.
(6.) On suspicion of piracy, 387.
{c.) Inspection of merchant ves-
sels by war vessels of the
same nation, 387.
<W.) Right of approach to ver-
ify nationality, 387. (See
Case of the Virginius, 388.)
Seas, the high, 42.
Servitudes. 52.
How created, 53.
How terminated, 53.
Positive, 53.
Negative, 54.
Examples. 53, 54.
Ship canals, 39.
Jurisdiction over, 39.
Neutrality of, in general, 39.
Case of the proposed Nicaragua
canal, 40.
Case of the Panama canal, 40.
Sound dues, 38.
Sources of International Law, 18.
Decisions of international courts,
or boards of arbitration, 18.
Decisions of municipal courts, 23.
Diplomatic correspondence, 19.
Divine law, the, 24.
History general histories, and
histories of important epochs,
24.
Municipal law of states, 24.
Roman Law, the, 19.
State papers, 19.
Text-writers, 22.
Sovereignty of states, 28.
How acquired, 34.
How lost, 34.
Test of a sovereign state, 33.
Classification of sovereign powers,
30.
The essential attributes of sover-
eignty, 31.
(.) Sovereignty, 31.
(6.) Independence, 31.
(c.) Equality, 31.
Spies in war, '241.
Springbok, case of the, 346.
State, the term defined, 28.
Difference between the terms
" state " and " nation," 28.
Classification of states, 28.
Sovereign, 32.
Dependent, or semi-sovereign,
32.
Confederate, 32.
Belligerent, 200.
Neutral, 276.
Government of states, 28.
Classification of, 29.
Territory of a, 35.
St. Petersburg, Declaration of (Appen-
dix D), 440.
Straits, 37.
Jurisdiction over, 37.
Rights of ownership and jurisdic-
tion over, 37.
Right of passage through, 38.
Subjects of states (see Citizens), 98.
The terms "citizen" and "sub^
ject" synonymous, 98.
Classification of, 99.
Duty of allegiance, 98.
Native-bom, 99.
Naturalized, 100.
Right to protection, 98.
Temporary occupation in war, 244.
Territory, defined, 35.
What constitutes the territory of
a state, 35.
Boundaries, 35.
Rivers as boundaries, 35.
Navigation of boundary rivers. 44.
Text-writers, works of, as a source of
International Law, 22.
Classification of, 22.
Thirty Years' War, influenceof, upon de-
velopment of International Law, 16.
Treaties and conventions, 165.
Purpose of, 165.
468
INDEX.
Eight to make treaties an incident
of sovereignty, 1(>5.
Contracts and agreements with
individuals, 166.
Treaty-making power, 106.
Conditions essential u> the validi-
ty of treaties, 167.
(a.) Power of the contracting
parties, 167.
(J.) Consent of the contracting
parties, 167.
(c.) Possibility of execution,
168.
Binding force of treaties, 169.
Mannerof negotiating treaties, 169.
Language used, 170.
Form and signature, 171.
Ratification of treaties, 172.
Classification of, according to their
nature, 173.
Transitory and permanent, 174.
Classification of, according to their
objects, 174.
Cartels and capitulations, 174.
Treaties of alliance, 175.
Treaties of guarantee, 176.
Reciprocity treaties, 178.
Treaties of peace, 257.
Termination of treaties, 179.
Rules for the interpretation of
treaties, 180.
Terms used in treaties, 183.
Troops, neutral conveyance of enemy's,
356.
Truce, 253.
Usages of war, 208.
(/See Appendices A, C, D, E.)
Virginius, case of the, 388.
Visitation, right of (see Right of
Search), 379.
War, 198.
The right of redress, 198.
Definition and purpose, 198.
Rightfulness of war, 199.
Classification of, 199.
The belligerent parties, 200.
Right of declaring war, in whom
vested, 201.
Causes of war, 201.
Responsibility for a resort to war,
202.
Moral considerations involved,
202.
Declaration of war, and its effects,
203.
Ancient and modern rule, '203.
Notification of, to whom given,
204.
Effect of, upon treaties, 204.
Effects of a state of war, 205.
Upon subjects of an enemy in
belligerent territory, 200.
Upon property of enemy sub-
jects in belligerent territory,
207.
Laws of war, 208.
Their character and tendency,
208.
Subjects discussed in, 210.
Amount and kind of force that
may be used, 210.
Legal effects of a state of war
upon the subjects of the bel-
ligerent states, 210.
Who may lawfully carry on
war, 211.
Armed forces of a state, 211.
Partisans, 211.
Levees en masse, 212.
Guerillas, 214.
Forces that may not be used
in war, 214.
Wars with savages, 215.
Forces employed at sea, 215.
Naval establishments, regular
and volunteer. 216.
Privateers, 216.
Letters of marque, 216.
Effect of modern inventions, and
of improved methods of attack
and defence, 218.
Methods of carrying on war, 218.
Rule of good faith; use of deceit,
219.
Attack of places, 219.
Duty of the commanding officer
in the matter of surrender,
221.
Use of the enemy's uniform and
flag, 222.
Rule as to quarter, 222.
Treatment of individuals of the
enemy, 222.
Forbidden practices, 223.
Instruments of war, 223.
INDEX.
469
What instruments arc furbid-
den, 224.
Torpedoes, mines, etc., 225.
The usages of war at sea, 226.
The public and private property
of the enemy, 226.
Treatment of property on land,
226.
(a.) The public property of
the enemy, 226.
(6.) The private property of
enemy subjects, 227.
(c.) Requisitions, 228.
(d.) Contributions of war, 230.
(e.) Captured property on
land ; booty, 230.
Treatment of non-combatants in
the theatre of war, 232.
Prisoners of war, 233.
Who may be made prisoners of
war, 234.
Treatment of, 234.
Character of their confinement,
235.
Status of prisoners of war, how
terminated, 235.
(a.) Exchange of prisoners,
235.
(6.) Paroles, 236.
By whom given, 236.
Conditions of parole, 237.
Breach of parole, 237.
Intercourse between belligerents,
237.
Flags of truce, 238.
Rules as to the use of flags, 238.
Cartels, 239.
Capitulations, 239.
Safe-conducts, 239.
Safeguards, 239.
Licenses to trade, 240.
Offences against the laws of war,
241.
(a.) Being a spy, 241.
(b.) Being a guerilla, 214, 242.
(c.) Crimes of violence, 243.
Right of temporarv occupation,
244.
History of the different views
of military occupation, 245.
Present view of occupation, 246.
Rights of occupation, 247.
Martial law, or the state of
siege, how exercised, 247.
Difference of opinion as to the
meaning of the term " occu-
pation," 250.
Permanent occupation, 251.
Retaliation in war, 251.
Limitations upon the exercise
of the right, 252.
The termination of war, 253.
Suspensions of hostilities truces,
253.
(a.) Special traces, 253.
What may be done during a
special truce, 253.
(6.) General truces, or armis-
tices, 254.
Treaties of peace, 255.
In what respects different from
ordinary treaties, 255.
How executed, 256.
When effective, 257.
Their binding force, 256.
Effects of treaties of peace, 257.
(.) Upon the causes of the war,
257.
(6.) Upon individuals, 257.
(c.) Treatment of occupied ter-
ritory, 258.
The rules of maritime capture,
259.
Their character and tendency,
259.
Forces that may be employed
in maritime war, 260.
Prize, 260.
Title to prize, in whom vest-
ed, 261.
Duty of captor, 261.
Ransom of captured vessels,
263.
Ransom contracts, 264.
Hostages, 265.
Recapture and postliminy,
266.
Prize courts, 268.
Jurisdiction of, 269.
Law applied by, 270.
Procedure in prize cases, 271.
Right of appeal, 272.
Rules for determining nation-
ality of ships and goods, 272.
THE END.
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